*1 RICE v. CAYETANO, OF HAWAII GOVERNOR 6, 1999 Argued February No. 98-818. October Decided *3 Kennedy, J., Court, Rehnquist, delivered the in which opinion J., O’Connor, Scaua, Thomas, Breyer, J., C. JJ., joined. filed result, Souter, J., an opinion concurring joined, post, in which Stevens, J., Ginsburg, J., 524. p. filed a dissenting opinion, which joined II, Ginsburg, J., as to Part post, p. opinion, 527. filed a dissenting post, p. 547.
Theodore B. Olson the cause for With argued petitioner. Douglas R. and Thomas Cox G. on him the briefs were Hungar.
John Roberts, Jr., G. the cause for argued respondent. Anzai, on the brief were Earl I. him With General Attorney Dorothy D. Lau, Girard M. Sellers, and Charleen Hawaii, Gregory Aina, G. Garre. General, and Attorneys Deputy Deputy Kneedler General for Solicitor the cause argued as amicus curiae urging affirmance. United States Waxman, Solicitor General him on the brief were With Attorney Deputy Solicitor Gen General Assistant Schiffer, Ann Irving Gornstein, and Elizabeth Underwood, L. eral Peterson* Kennedy of the Court. delivered the opinion
Justice us that an ex- of Hawaii comes before A citizen claiming him from barred has raee-based voting qualification plicit, Amendment Fifteenth in a statewide election. States, on binding of the United to the Constitution sub- States, and their Government, political National the ease. divisions, controls for to vote nine limits the right
The Hawaiian Constitution com- The trustees a statewide election. trustees chosen Campaign filed for the of amici curiae *Briefs reversal were urging and Shannen W. et al. Richard K. Willard a Color-Blind America Cof- by Brett M. Kava- fin; and for the Center for Equal Opportunity et al. *4 Bork, naugh, Clegg. H. and Roger Robert of for the State Briefs of amici curiae affirmance filed urging were California, and of Lockyer, Attorney Bill General by California et al. Gede, General, the Attor- F. by Thomas Special Attorney Assistant Pryor follows: Bill of jurisdictions their as neys respective General for Nevada, Sue Del Guam, Papa F. Frankie Alabama, of John Tarantino of Mexico, B. Kara of the Northern Mari- Maya Patricia Madrid A of New Hardy Myers Oklahoma, of Islands, W. Drew Edmondson A of ana Bleich; by Jeffrey L. Oregon; for of Natives et al. the Alaska Federation G, Phillips, Carter by for the Estate Trust Kamehameha Schools Bishop Hare; Seitz, C. Congress for Virginia and Michael A the National Moore; C. Jerome and Steven for American Indians Kim Gottschalk by Alston, Paul by et al. State Council of Hawaiian Homestead Associations Forman; Tam, the Office of Hong, William M. Lea and David M. and for Chambers, Ar- Sachse, Peyton by Harry Reid R. Hawaiian Affairs et al. Lazarus, Jr., Broder, Sherry Dyke. M. Van thur P. and Jon Delega- amici curiae were Congressional Briefs of filed for the Hawaifi Erickson; Chock, Zell, and Janet Patricia M. M. L. by tions Jennifer Schoettle; Pacific Legal R. for the Walter Hou al. by Hawaiians et L. Browne. Findley John H. and Sharon by Foundation pose governing authority agency of a state known as the Affairs, Const., XII, Office of Hawaiian or OHA. Haw. Art. § agency designed programs 5. The administers for the ben- citizenry. efit of two subclasses of smaller the Hawaiian The comprises designated those Hawaiians,” class as “native de- language supplementary with later statute, fined certain part fall, set out in less than one-half descendants of not prior inhabiting of the races to 1778. the Hawaiian Islands §10-2 larger second, Haw. Rev. Stat. class persons programs benefited is defined “Hawaiians,” OHA be, in the later refinements contained statute we quote, persons people those are descendants of inhabit- who ing right the Hawaiian Islands in Ibid. The to vote 1778. larger “Hawaiians,” second, for trustees is limited to persons, class which of course includes the smaller class § of “native Const., XII, Hawaiians.” Art. Haw. 5. Petitioner a Rice, citizen of Hawaii thus himself Ha- well-accepted waiian in a term, sense of does not have ancestry requisite larger not, even class. for the He may then, “Hawaiian” in he statute; terms so not presented vote in the trustee election. this The issue may Rejecting case is whether Rice be so barred. arguments question State’s that the classification in is not that, is, racial or if it it is valid for other rea- nevertheless petitioner’s right sons, we hold Hawaii’s denial to vote be a clear violation of the Fifteenth Amendment.
I Congress When and the State of Hawaii enacted the laws we they are about to discuss and their own review, made *5 history assessments of the events which intertwine Hawaii’s history with the begin America itself. We will with very background. brief account of that historical Historians and other scholars who write Hawaii will a different have purpose They may and more latitude than do draw we. judgments laudatory either more or more than harsh pos- in role, Our more limited
ones to which we refer. events under- particular case, is to recount of this ture ensuring proper that we accord thus lawmakers, stood policies adopting and appreciation purposes in to their litigants agree two works seem at issue. The laws appropriate and we particular consideration, for our in are rely part Fuchs, L. Hawaii Pono: on those sources. See (hereinafter (1961) Fuchs); History Ethnic and Political An (1953); (1938); Kuykendall, Kingdom The Hawaiian 1-3 R. (1967)(hereinafter Kuykendall). people they origins and the date
The of the first Hawaiian certainty, are not but reached the islands established they Polynesians voy- assumption who usual were aged began the islands around A. D. from Tahiti and to settle Kuykendall Daws, also Shoal of 4; 3; see G. 750. Fuchs (Mar- (1968) History xii-xiii A of the Hawaiian Islands Time: Tahiti). England’s Captain quesas When Cook Islands and expedition on the Hawai- made landfall in Hawaii his years developed, preceding people 1,000 or ian had over They political their so, a cultural and structure of own. had practiced poly- well-established traditions and customs fishing religion. Agriculture theistic sustained people, though population vary, and, some modern estimates population in historians conclude that the 1778 was about 200,000-300,000. 4; Schmitt, Fuchs R. Historical Statis- See Schmitt). (1977) (hereinafter tics The accounts of Hawaii upon people’s capacity to of Hawaiian life remark often beauty pleasure existence, island but life find their idyllic. altogether not In time the islands were was Cook’s kings, ruled intra-Hawaiian wars could four different great suffering. Kings principal chief- inflict loss and priests, high order the death or sacri- tains, as well as could subject. society any however, with its one, fice of was history. identity, its own forces, own its own cohesive voyage many expeditions years would In the after Cook’s ships’ companies remained on follow. A few members
501 as islands, advisers, some authorized others deserters. intermarriage with Their the inhabitants Hawaii was not infrequent. kingdom 1810,
In the islands were united as one under the figure history, leadership of an admired in Hawaiian Kame- say many hameha I. It is difficult to how settlers from Europe King America were Hawaii when the con- power. solidated his One historian estimates there no were Kuykendall more than 60 or so settlers at that time. 27. Beginning An influx was soon to follow. about mis- Congregationalists sionaries of whom from New arrived, England They early years. sought were dominant in the religious teach Hawaiians to beliefs and abandon customs contrary teachings practices. were to Christian story increasing The 1800’sare a involvement of west- political erners in the Kingdom. economic and affairs of Rights principal concern, land became a and there was unremitting pressure to allow to use non-Hawaiians and to own land and to be secure in their title. Westerners were only pressing not the ones with concerns, however, disposition ownership of land came to be an unsettled among matter the Hawaiians themselves. presented
The status of Hawaiian lands has issues of com- plexity controversy from at least the rule of Kame- day. present hameha I to attempt We do not to inter- pret history, thought upon lest our comments be to bear issues not before us. It suffices to refer to various of the appear historical persuasive conclusions that to have been Congress they and to the State when enacted the laws soon to be discussed.
When power, Kamehameha I came to he reasserted suze rainty provided over all parts lands and for control of of them by system described in our own cases as Hawaii “feudal.” Housing Authority (1984); 229, 232 v. 467 U. S. Kai Midkiff, States, ser Aetna v. United U. S. A description King’s early well-known decrees is con *7 King opinion Supreme of tained in an 1864 of the Court the extensively upon turn, of The drew court, dom Hawaii. part, report as follows: recited, an earlier which “ conquered by L, Kamehameha ‘When the islands were predecessors, example and divided he of his followed the among principal retain chiefs, out his warrior the lands ing, portion in own hands to be cultivated however, a his managed by or attend his immediate servants or own principal anew and chief his lands ants. Each divided persons gave of chiefs or them out to an inferior order again they again subdivided and rank, whom were (often) through passing four, hands of five after the persons King down to the lowest class of six from the persons to have All were considered tenants. these pro rights productions them, the or the lands, in the clearly portions rights defined, al were not of which rights acknowledged. though universally The same . . . superior King possessed landlords over the which the pos grades of landlords them, and all under the several joint so that there was inferiors, over their sessed King really owning allo- ownership land, person placed land, he hands in whose dium, ” holding Majesty Ka In re His it in trust.’ Estate Principles (quoting IV, 718-719 mehameha Haw. Adopted by Land of Commissioners Quiet Board 1847)). (Haw. Kingdom Titles, 81-82 Stat. Laws through decade, a succes- Beginning the next in 1839 approved of decrees III, sive a series ruler, Kamehameha ownership designed demands for to accommodate laws Supreme security the Hawaiian of title. In words daily in- subject rights “[t]he one of in land was Court, newly Government, for it creasing importance formed to the country could resources of the that the internal was obvious system and undefined developed of undivided not be until the Haw., at 721. ownership be in land should abolished.” Arrangements in some were made to confer freehold title King chiefs and re- lands certain other individuals. tained vast himself, lands and directed other exten- government, sive lands be held 1840 had which adopted ef- the first Constitution of islands. Thus was fected a division, fundamental and historic known as the foreigners, given Great Mahele. In were turn, *8 right ownership. of land policies dispersal
The new did not result in of owner- wide ship. Though provisions attempted some had been which many proved tenants could claim these ineffective in lands, ownership and instances, 1920, became concentrated. In the Congress Report States, the in on the of United bill estab- lishing Commission, the Hawaiian made an assess- Homes policy following ment of Hawaiian land in the terms: committee of “Your thus finds that since the institution private ownership of in Hawaii native Hawai- lands the King granted ians, outside of the the chiefs, and were portion very and have but a of the lands of held small the the laws Islands. Under homestead somewhat majority more than of the lands homesteaded were great many but a Hawaiians, of these lands have been improvidence through inability lost farm- and finance ing operations. frequently, Most the native however, thought Hawaiian, future, with no has obtained only the land for a nominal to turn about and sell sum, wealthy nearly approach- it to interests a sum more ing its real value. The Hawaiians are not business men competitive and have shown themselves to meet unable speculators conditions unaided. In the are the end the real beneficiaries of the homestead laws. Thus the tax only per returns for 1919 of show that 6.28 centum property the of the Islands is held native Hawaiians part possession and this for the most is lands approximately wealthy Hawaiians, the of a thousand 504 Rep. 839, 66th chiefs.” H. R. No.
descendente Cong., Sess., 2d unfolding, developments were United these
While pro- European powers made efforts constant States political and and to influence Hawaiian tect their interests arrange- general. The first “articles affairs in economic Kingdom the United ment” between States Department State, Treaties signed 1826,8 Hawaii were Agreements of the United States International and Other (C. 1968), p. comp. 1776-1949, Bevans of America two coun- and conventions between the treaties additional Treaty signed 1887, see were tries (1849) (friendship, com- Islands, 9 Stat. Hawaiian navigation); between United Convention merce, and King Majesty His of the Hawaiian of America and States (1875)(commercial reciprocity); Supple- Islands, Stat. 625 mentary America States of Convention between United Majesty King Islands, the Hawaiian 25 Stat. and His *9 (1887) (same). only not the The States was United by country the affairs, and its but later interested Hawaii reality part century dominance in of the of American expansion, political influence trade, economic and settlement, apparent. became pro-native anti-Western, intensified between an
Tensions government on the one hand and western busi- bloc in the property on the other. The con- interests and owners ness resig- in 1887. forced the flicts came to the fore Westerners Kingdom of Hawaii nation of the Minister and Prime among adoption Constitution, new other which, of a things, power monarchy of the and extended the reduced the Kuykendall right non-Hawaiians. 3 to vote to 344-372. they again peaked, through 1893, when Tensions continued attempt response this time in to an then-Hawaiian promulgate new monarch, Liliuokalani, to a constitu- Queen restoring Nobles control over the House of tion monarchical subjects. limiting A so-called the franchise Hawaiian Safety, group professionals Committee of business- men, with the active Stevens, assistance John United acting Minister to Hawaii, States with United States Armed replaced monarchy govern- provisional with a Forces, government sought ment. That annexation the United year, States. On December 18 of the same President Cleve- unimpressed land, and indeed offended the actions of the American denounced the Minister, role of American monarchy. forces and called for restoration of the Hawaiian Message of the Repre- President to the Senate and House of reprinted Rep. Cong., sentatives, in H. R. No. 53d 2d Sess., 3-15 could not resume her former Queen place, provisional government however, and, es- Republic tablished the of Hawaii. The abdicated her Queen year throne a later. McKinley
In signed 1898, President Resolution, Joint sometimes called the Newlands to annex the Resolution, territory Hawaiian Islands as of the United States. 30 According Republic Stat. 750. to the Resolution, Joint government, public Hawaii ceded all Crown, former lands to the United States. Ibid. The resolution further provided public that revenues from the lands were to be solely “used for the benefit of the inhabitants of the Hawaiian Islands for public educational purposes.” and other Ibid. years Two Organic later the Hawaiian Act established the Territory of Hawaii, asserted United control States over the put ceded possession, lands, those lands “in the use, and government Territory control of the of Hawaii . . . *10 provided until Congress.” otherwise Apr. 30, Act of 1900, 339, ch. § 91, 31 Stat. 159. century
In 1993, after the intervention the Committee Safety, Congress of of the United States reviewed this history, particular and in the role of Minister Stevens. Con- gress passed recounting a Joint Resolution in events offering some apology detail and an to the native Hawaiian people. 107 Stat. 1510. provisions impor- two other
Before turn to the relevant we demographics Hawaii, of matters, tant which affected tragedy first inflicted on must be recounted. The early people by the introduction of western dis- Hawaiian early agents. as the establishment eases and infectious As becoming apparent that I, Kamehameha it was the rule of vulnerability population to diseases the native had serious figures High mortality borne to the islands settlers. infancy experienced adulthood, were even from com- in colds, and measles. Fuchs diarrhea, mon illnesses such as greater even see 58. More diseases took 13; Schmitt serious smallpox epidemic lives In the thousands of tolls. years By arrival, 1878, 100 after Cook’s were lost. Ibid. peo- population 47,500 had been to about the native reduced ple. an Id., at no doubt!were 25. These mortal illnesses despondency despair, disenchantment, initial cause early later in of the some commentators noted deseendents people. Hawaiian Fuchs 13. See demographics to important feature of The other Hawaiian many immigration by people of be the islands noted is the response Mostly to the de- different races and cultures. industry sugar cane mand of the labor in the for arduous immigration brought Chinese, Por- fields, successive waves tuguese, Japanese, Beginning with Filipinos to Hawaii. immigration plantations alone of 293 Chinese something Hawaii, 400,000 estimate, drew in one over century. 24; men, Id., next women, and children over the 1980). (4th People A. of these Lind, Hawaii’s 6-7 ed. Each history Hawaii, groups ethnic and national has had its own struggles discrimination, its its own and official societal creating present successes, own and its own role in soci- ety Peopling Nordyke, E. of Hawai'i islands. See 1989). (2d figures 28-98 re- ed. The 1990 census show the sulting diversity population. ethnic of the Hawaiian U. S. Dept, Popu- Census, Bureau of 1990Census Commerce, *11 Reports, Ancestry Groups Supplementary lation, Detailed (Oct. 1992). for States background legislative this the enact-
With we turn to ments direct the ease of relevance to before us.
II Territory, long Congress Not after the creation of the new became condition of the native Hawaiian concerned with the people. Rep. Hearings 839, 2-6; See H. R. No. at on Rehabilitation and Pro- Colonization of Hawaiians and Other posed Territory Organic Amendments to the Act of the Territories, Hawaii before House Committee on the 66th Cong., Reciting purpose 2d its to rehabilitate Sess. population, Rep. the native Hawaiian see 839, H. R. No. Congress 1-2, Act, enacted the Hawaiian Homes Commission public which 200,000 set aside about acres ceded lands program long-term and created a for the loans leases July benefit of native 9, 1921, Hawaiians. Act ch. Hawaiian[s]” 108. The Act include Stat. defined “native “any part descendant of not less than one-half blood inhabiting previous of the races the Hawaiian Islands 1778.” Ibid.
Hawaii was admitted as the Union in 50th State of the agreed adopt 1959. With admission, the new State part Hawaiian Homes Commission Act as of its own Consti- (Admission Act); tution. Pub. L. 86-3, §§4, 7, Stat. §§ see Haw. Const., XII, addition, Art. In 1-3. United granted public public States Hawaii title all lands and property within the State, boundaries of the save those which the Federal Government for its retained own use. §§5(b) (d), grant Admission Act 73 Stat. 5. This included — 200,000 acres set aside under Hawaiian Homes Com- mission Act and almost 1.2 million additional acres of land. Brief for United States as Curiae Amicus 4. legislation authorizing grant recited that these proceeds generated, they
lands, and the were to income *12 508 public “managed disposed
be held “as a trust” to be of purposes: for of” one more five “[1] support public public other for the of schoolsand educational institutions, [2] for the betterment of as defined in the Hawai- Hawaiians, conditions of native ian Homes Commission Act, 1920, as amended, [3] for development ownership home as of farm and on widespread basis possible[,] [4] for the making of public improvements, [5] for the provision of lands §5(f), public 73 use.” Admission Act Stat. 6. following appar- admission, In the first decades the State ently to administer the that had been set continued lands Act for the aside under the Hawaiian Homes Commission benefit of The income native Hawaiians. from the balance “by public large of the to the lands is said to have flowed department Standing Journal, of education.” Hawaii Senate (1979). Rep. pp. 1350, Committee No. 784, In 1978 Hawaii amended its Constitution establish § Affairs, 5, Office which Const., XII, Haw. Art. Hawaiian “[t]he has as its mission of native betterment of conditions §10-3 [and] Hawaiians,” Hawaiians . . Haw. . Rev. Stat. (1993). convention, Members of the 1978 constitutional proposed, which the set new amendments were drafted purpose agency: forth proposed of the [of Whole] im- “Members the Committee of the were pressed by concept Hawaiian of the Office of entity public Affairs for the which establishes a trust people ancestry. benefit of the Members Hawaiian right provide de- foresaw that it will Hawaiians the priorities termine the which the better- will effectuate promote pro- ment of their condition and welfare and preservation race, and tection and of the Hawaiian Proceedings people.” it will unite Hawaiians as a Com- the Constitutional Hawaii of Convention of Rep. p. mittee of the Whole No. their vested
Implementing statutes and later amendments authority categories two broad to administer OHA with percent from the million a 20 share the revenue 1.2 funds: 5(b) § granted pursuant of lands to the State acres which OHA is to administer "for the better- Act, Admission Hawaiians,” ment of the conditions of native Haw. Rev. Stat. *13 § (1993), any appropriations 10-13.5 state or federal private may donations that be made for the benefit of "native §6. "Hawaiians,” Const., Hawaiians” Haw. Art. XII, and/or (The §§10-1 generally See Haw. Rev. Stat. to 10-16. 200,000acres set aside under Homes the Hawaiian Commis- by agency. separate sion Act are administered a See Haw. (1993).) §26-17 Legislature Rev. Stat. The Hawaiian has charged "[s]erving principal OHA of mission as public agency responsible performance, develop- . .. for programs relating ment, and activities coordination policies “[assessing native and Hawaiians,” Hawaiians practices agencies impacting of other on native Hawai- "conducting advocacy ians and Hawaiians,” efforts for native “[a]pplying receiving, Hawaiians and Hawaiians,” for, disbursing, grants and from all sources for donations native “[serv- programs Hawaiian and Hawaiian and services,” and § ing receptacle reparations.” as a for 10-3. by
OHA is overseen board of trustees, nine-member -presenting members of which “shall be Hawaiians” and— precise by qualified issue in this be case—shall “elected vot- ers provided by who are Hawaiians, as law.” Const., Haw. 13D-3(b)(l) XII, Art. §5; see Haw. §§13D-1, Rev. Stat. The term "Hawaiian” is defined statute: " any aboriginal ‘Hawaiian’ peo- means descendant of the ples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in peoples and whieh thereafter have continued to § reside in Hawaii.” 10-2.
The statute defines “native Hawaiian” as follows: any means descendant of not less
“‘Native Hawaiian’ inhabiting part one-half of the races Hawaiian than previous Islands as defined the Hawaiian provided amended; Act, 1920, Homes Commission as identically the term refers to the descendants aboriginal peoples quantum of such which such blood sovereignty exercised and subsisted in the Hawaiian peoples Islands in 1778 and which thereafter continued to reside in Hawaii.” Ibid. and a
Petitioner Harold Rice is a citizen Hawaii descend- preannexation not, He is ant of residents the islands. pre-1778 natives, and so he we have descendant noted, is neither “native Hawaiian” nor “Hawaiian” as defined elec- applied March 1996to vote in the statute. Rice register tions OHA To to vote for the officeof trustees. required “I am he was to attest: also Hawaiian and trustee *14 register to to in OHA elections.” Affidavit on desire vote Application Registration, Lodging by Petitioner, for Voter through 2. the Tab Rice marked words “am also Hawaiian “yes.” and,” then the form The his checked State denied application. Benjamin Cayetano, sued the
Rice of Hawaii, Governor the United the States District Court for District of Hawaii. (The capacity, was sued in official Governor his the At torney challenged General of Hawaii defends the enact State.”) respondent ments. We refer to the as “the Rice voting contested his exclusion from in elections for OHA voting special relating in a to trustees and from election na sovereignty August which tive Hawaiian was held in 1996. rejected challenge, the After District Court the latter see (1996) (a Cayetano, Supp. decision not Rice v. F. 1629 us), parties summary judgment before moved for on the the the to the claim that Fourteenth and Fifteenth Amendments excluding the law Rice United States Constitution invalidate from the OHA trustee elections. summary granted judgment
The
to the
District Court
(Haw. 1997)*
Supp.
Surveying
State. 963 F.
the
history
people,
of the islands and their
the District Court
Congress and
have
determined that
the State of Hawaii
rec-
guardian-ward
ognized
relationship
with the
Hawai-
native
analogous
relationship
ians, which the
found
court
to
Id.,
between the
and the Indian tribes.
at
United States
premise,
voting
1551-1554. On this
court
examined
qualification
applied
legisla-
with the
we
latitude that
have
passed
Congress’ power
pursuant
tion
Indian
over
affairs.
Id.,
(citing
Mancari,
at 1554-1555
Morton v.
1998). challenged The court noted that Rice had not constitutionality underlying programs it- or of OHA Considering “accept Id., self. itself bound 1079. found] [it trusts and them, their structure as administrative and assume that both Hawaii lawful,” are the court held that “may rationally being group conclude that Hawaiians, obligations whom trust run and owe to whom OHA trustees duty loyalty, group should be the who the to decide ought trustees to be.” The court held notwith- Ibid. so *15 standing holding its clear that the Hawaii Constitution implementing statutes on their “contain racial classification face.” Ibid. (1999), granted
We 1016 now certiorari, 526 U. S. reverse.
III purpose The and command of the Fifteenth Amendment comprehensive. language explicit are set forth in both 512
n The may and the not violate a National Government States They abridge may deny principle: or not fundamental right previous condi- vote on account of race. Color classifications, or too, tion of are criteria forbidden servitude, unnecessary present though it is to consider them in the case. the immediate con- War, Enacted in the wake of the Civil emancipated guarantee was to to the cern of the Amendment they right vote, lest be the civil and slaves denied protect political capacity as its their new freedom. Vital beyond objective goes remains, the Amendment it. Consist- design Constitution, ent the Amendment with the transcending particular in terms, cast fundamental terms controversy impetus the immediate for its enact- which was protection persons, grants to all not ment. The Amendment just particular members of a race. design equality of the Amendment is reaffirm process,
of races at the most of the democratic basic level voting A so exercise of the franchise. resolve absolute required language compre- simple as it in command was purpose hensive reach. Fundamental in and effect and self-executing prohibits operation, the all Amendment provisions denying abridging voting any franchise of “[B]y citizen or class citizens on the basis of race. power disap- inherent white of the Amendment the word peared” bringing laws, our who had been from those grant generic excluded reason of race “the suf- within frage States, made the State.” Guinn v. United 238 U. S. (1915); 347, Delaware, see also 103 U. Neal v. S. (1881). acknowledged The Court has the Amendment’s straightforward neutrality mandate of terms: “If citizens having qualifications permitted one race certain are having qualifications law to those of another vote, the same amendment, no consti- must be. Previous to this there was guaranty against now there tutional this discrimination: is.” United Reese, States v. U. S.
Though
reality
clear,
the commitment was
remained
promise. Manipulative
practices
far from the
devices and
employed
deny
were
to
soon
the vote
have
blacks. We
“variety
cataloged
persistence”
before the
of these tech-
niques.
South Carolina
311-
Katzenbach,
v.
U. S.
(1966)
clause);
(citing, e.g.,
supra (grandfather
Guinn,
(1915)(same);
Myers Anderson,
v.
238 U. 368
(1939)
v.
S.
Lane Wil
hurdles”); Terry
(“procedural
son,
signed class from See to exclude one racial (over Allwright, supra, Terry, supra, at at 663-666 469-470; (1985)). ruling Grovey 45 The Fif Townsend, 295 U. S. v. not be so circum Amendment, held, the Court could teenth in discrimination bans racial vented: “The Amendment a voting It thus establishes na both state and nation. against in policy... as voters not to be discriminated tional public policies to se governmental determine elections to Terry, supra, public state, or local.” officials,national, lect at 467. voting before eases, the now us
Unlike cited the structure specific granting in the subtle nor indirect. It is neither ancestry persons of defined no others. vote to category instead this is not a racial all but State maintains at were in a to those whose ancestors classification limited particular regardless Brief time, at a of their race. Hawaii Respondent points cer- 38-40. The State to theories concluding as tain inhabitants of Hawaii scholars that some may migrated Marquesas Islands 1778 have from 38-39, Northwest, Id., well Pacific as from Tahiti. argues, and n. 15. the restriction Furthermore, State operation person ancestors its excludes whose traceable exclusively Polynesian re- were if ancestors none of those vote and, hand, sided in 1778; Hawaii on other say, sixty- granted person trace, be to a one would who could ancestry his on fourth of or her to a Hawaiian inhabitant pivotal said, date. it is mean factors, Ibid. These reject restriction is this line not a racial classification. We argument. Ancestry proxy proxy can be It is that here. for race. if the more Even residents of Hawaii been of had backgrounds cultures, diverse it from clear ethnic is far favoring that a not be test their would descendants qualification. a race-based this For But that is not case. Kuyken- migration. centuries was Hawaii isolated from physical dall 3. The inhabitants common character- shared they isties, Indeed, had a common culture. statutory question emphasized drafters of the definition in explaining "unique culture of the ancient Hawaiians” in Standing Journal, their work. Hawaii Committee Senate (“Modern Rep. scholarship 784, at 1354; No. see ibid. also *18 culturally distinguishable people identified such race of as Polynesian provisions peoples”). from other The before us commonality preserve peo reflect the that of State’s effort to ple day. present interpretation to the In the of Recon rights struction era that civil laws we have observed “racial singles discrimination” is that out classes which “identifiable persons solely ancestry of ... because of their or ethnic char Al-Khazraji, College acteristics.” Saint Francis v. 481 U. S. (1987). statutory very object The 604, definition question congressional counterpart in and its in earlier early the Hawaiian Homes is to Commission Act treat recog people, commanding Hawaiians as a distinct their own enacting legislation respect. nition The State, ancestry us, before has used as a racial definition and for a purpose. racial history of the State’s definition demonstrates the
point. As we noted, have the statute defines “Hawaiian” as
“any aboriginal inhabiting peoples descendant of the sovereignty Hawaiian Islands and sub- which exercised peo- 1778, sisted in the Hawaiian Islands in and which ples thereafter to reside in Hawaii.” have continued § Haw. Rev. 10-2 Stat. promulgated
A different definition of first “Hawaiian” was proposed 1978 as one the. State amendments proposed, “any As Constitution. “Hawaiian” was defined pre inhabiting descendant Islands, of the races Hawaiian Proceedings vious to 1778.” 1 of the Constitutional Conven Rep. tion of 13, Hawaii of Committee of the Whole 1978, No. Rejected at manner, 1018. see Ka as not ratified in a valid (1979), Doi, halekai 342, 543, v. Haw. 590 P. 2d promulgated end and in the the definition was modified statutory quoted See Hawaii Senate Jour- form as above. Standing Rep. 1850, 1353-1354; Committee No. nal, By Rep. own id., 77, at 998. the drafters’ Conf. Comm. No. changes language any were at admission, however, Noting “[t]he Ha- ‘native most definitions of cosmetic. changed ‘peoples’for are to substitute waiian’ ‘Hawaiian’ “stressed] that ‘races,’” of the revised definition the drafters ‘peoples’ mean change does non-substantive, this ” (“[T]he ‘peoples’has id., word Ibid.; see also at 999 ‘races.’ ‘Hawaiian’. ‘races’ in the definition been substituted for your this sub- Again, emphasize that Committee wishes merely ‘peoples’ mean does technical, stitution is and that ”). ‘races’ compilation in- statutes
The next definition in Hawaii’s preserves corporates of “Hawaiian” new definition *19 explicit tie to race: any not less descendant of “‘Native Hawaiian’ means inhabiting part of the Hawaiian than one-half the races by previous as the Hawaiian Islands defined provided Act, 1920, amended; Homes Commission identically descendants the term refers to the aboriginal peoples quantum which such blood of such sovereignty in the Hawaiian exercised and subsisted peoples continued Islands in 1778 thereafter and which (1993). § 10-2 to reside in Haw. Rev. Hawaii.” Stat. [the] provision “[T]he This ... makes it clear: descendants aboriginal peoples” “the descendants ... means races.” Ibid. argument differenti-
As for the further restriction simply Polynesian on among people based ates even and is in- Hawaii, this too is the date of an residence in ancestor’s purpose prove is nonracial sufficient the classification by ancestry operation. Simply defined because a class suffice to race does not does not all members of the include argu- make the classification Here, race neutral. State’s by by express purpose ment is undermined racial its its actual effects. inquiry by implicates
The ancestral mandated the State grave specifying par- the same concerns as classification by principal ticular race name. One reasons race is treated as a forbidden is that it demeans the classification by ancestry dignity judged person in- worth of a to be by qualities. stead of his An or her own merit and essential inquiry respect into ancestral lines is not consistent with personality possesses, unique based on the a re- each of us spect per- Constitution itself secures in its concern sons and citizens. inquiry forbidden ancestral mandated the State is
by the that the Fifteenth Amendment for the further reason legal corruptive use of racial classifications of the whole preserve. order democratic elections seek to The law itself may generating prejudice not become the instrument for hostility against persons all too often whose directed particular ancestry is disclosed ethnic characteris- their tics and cultural traditions. citizens “Distinctions between solely ancestry very because of their their odi- are nature people upon ous to a free whose institutions are founded equality.” Hirabayashi doctrine of States, v. United tracing U. S. Ancestral of this sort achieves *20 purpose by creating its legal category employs which injuries, same mechanisms, and causes the laws same statutes that use race re- name. The State’s electoral voting qualification. striction enacts a race-based
V I principal voting The State offers three of law, defenses its any of prevail it which, contends, allows it to even if the classification is a racial one under the Fifteenth Amendment. reject, We arguments. and examine, each these 518
A reaching arguments The most far is that ex State’s permitted voting clusion of non-Hawaiians from our under allowing eases the differential of certain members treatment interpreting Court, Indian tribes. The decisions of this congressional the effect of and on the treaties enactments subject, ele have held that various tribes retained some quasi-sovereign authority, ments of even after cession their lands to the United See Brendale v. States. Confeder Nation, 408, 425 ated Tribes and Bands Yakima 492 U. S. (1989) opinion); Oliphant Suquamish Tribe, (plurality v. authority U. The retained tribal relates S. self-governance. opin (plurality supra, Brendale, to at 425 ion). theory In reliance on that the Court has sustained provision giving employment preferences persons to federal ancestry. Mancari, S., The tribal 417 U. at 553-555. theory upon are ease, rests, Mancari which it in to voked State to defend its decision restrict directly pro charged trustees, for the who so with OHA are tecting the interests of native Hawaiians.
If Hawaii’s restriction were to be sustained under Man- accept beginning prem- required be to cari we would some postu- yet Among ises not established in our other case law. necessary Congress, lates, it be would conclude that reciting purposes for the transfer of lands the State— and in other such as the Hawaiian Homes Com- enactments deter- mission Act and the Joint of 1993—has Resolution that of mined that native a status like Indi- Hawaiians have organized may, delegated has, ans in it tribes, authority preserve that These the State a broad status. propositions questions would raise of considerable moment difficulty. dispute, instance, It is a matter of some may it Congress as does whether the native Hawaiians treat Compare Dyke, Political Status the Indian Van tribes. Pol’y People, Yale L. & Rev. of the (1998), Hawaiian Native Special Re- Benjamin, Equal and the Protection *21 lationship: 106 Yale L. J. 537 Hawaiians, The of Case Native stay however. terrain, far off that difficult We can argument reason. Even State’s fails for a more basic finding authority step were to take substantial of we Congress, delegated State, to the to treat Hawaiians na- Congress may tive Hawaiians as not authorize a tribes, State to create a scheme of this sort. cases, as we a of course,
Of have established in series Con gress may treaty obligations responsibilities fulfill its its by enacting legislation to the Indian their tribes dedicated to Washington Washington circumstances and v. needs. See Fishing Passenger Assn., State 443 U. Commercial Vessel S. (1979) (treaties securing preferential fishing 673, n. 20 658, rights); Antelope, 641, v. 645-647 United States S.U. (exclusive (1977) jurisdiction over crimes committed federal country); Indians Indian Delaware Tribal Business (1977) (distribution Weeks, Comm. v. 73, U. S. 84-85 of property); tribal Moe v. Salish Kootenai Confederated 463, Tribes Flathead S. Reservation, U. 479-480 of (1976)(Indian taxes); immunity from Fisher v. District state Mont., Court Sixteenth Judicial Dist. 424 U. S. (1976) curiam) (exclusive jurisdic (per 390-391 tribal court adoptions). “every tion observed, over tribal As have we piece legislation dealing with Indian tribes and reserva single[s] special constituency tions ... out for treatment a supra, tribal Indians.” Mancari, at 552. upon rely, many pre-
Mancari, which above eases hiring sented the preference somewhat different issue of (BIA), promoting at the federal Bureau of Indian Affairs preference which favored individuals who “‘one- were degree member[s] fourth or more Indian blood and of a ... ” Federally-recognized (quot- S., tribe.’ n. 24 417 U. (1972)). ing Although 44 BIAM 335, 3.1 the classification component, important had a racial found it the Court preference group “not was directed towards a ‘racial’ consisting “only of ‘Indians,’” ‘fed- but rather to members of
erally recognized’ 24. “In this S., tribes.” 417 U. n. political [was] preference rather sense,” held, the Court “the (“The pref- Ibid.; id., also at 554 than racial nature.” see granted applied, not as a discrete erence, as to Indians quasi-sovereign group, but, rather, as members racial by governed tribal whose lives and are entities activities fashion”). unique preference a BIA BIA in Because the Congress' rationally could be “tied to the fulfillment obligation unique was “reasonable Indians,” toward the designed self-government,” rationally to Indian further Id., Court held that it did not offend Constitution. opinion note, that the however, at 555. The was careful to agency authority to ease was confined an BIA, generis.” Id., described as “sui at 554. exception
Hawaii would extend the limited of Mancari larger new and contends that a The State dimension. very challenged purposes vot- “one of the of OHA—and the ing provision of self- to afford a measure Hawaiians —is governance,” and so it fits the of Mancari. Brief for model Respondent Mancari, however, 34. It does from not follow Congress may a that authorize State to establish public scheme that limits the electorate for its officials to Indians, of tribal class the exclusion all non-Indian citizens. elections the federal statutes the tribal established Respondent
State cites illuminate its Brief for error. See (citing, g., e. S. Act, Menominee Restoration U. C. §476). Reorganization and the §903b, Act, Indian 25 U. S. C. right elections, If lacks a in tribal it is a non-Indian vote of a for reason such elections are the internal affair sovereign. quasi are the elections, contrast, The OHA agency, estab affair of the State of Hawaii. is a state OHA responsible Constitution, lished the State for the adminis obligations. tration of state laws and Art. Const., See Haw. §§5-6. Legislature XII, The Hawaiian has declared agency th[e] principal public OHA exists serve “as the responsible performance, development, co State programs relating ordination and activities to native Ha §10-3(3) (1993); waiians Haw. Rev. Stat. Hawaiians.” Lodging by Report see also Petitioner, Tab OHA Annual *23 27, 1994) p. (May (admitting 1993-1994, that tech "OHA is nically part government,” a of the Hawai’istate while assert ing operates entity”). “it that as a semi-autonomous Fore among obligations agency most entrusted to this is the of a proceeds administration share of the revenues and from public granted lands, to Hawaii to held “be said State as §§5(b), (f), public a trust.” Admission 5, 6; Act see Stat. §4. Const., Haw. XII, Art. delegates
The to the 1978 constitutional convention ex- plained position in the OHA state structure:
“The committee intends Officeof Hawaiian Af- independent fairs will be from the executive branch and government all other although branches of it will as- agency. may sume the a status of state The chairman governor’s be an ex officiomember cabinet. The status of the Office unique of Hawaiian Affairs is to be special. developed . . . The committee this office University on based the model par- of the of Hawaii. In ticular, the committee desired to use this model so that the office budget, could have maximum control over its personnel. assets and The committee felt it that was important arrange whereby a method the assets of separate kept Hawaiians could be from the rest treasury.” Proceedings state of the Constitutional Convention of Standing Hawaii of Rep. Committee No. 645.
Although apparent it is unique position that OHA has a just under state apparent law, it is that it remains an arm of the State. validity
The only question restriction is the before us. Appeals As the Court of did, we assume the va-
lidity underlying trusts, and' administrative structure point. intimating any opinion Nonetheless, without on that State, not trustee are elections OHA elections sovereign, separate quasi they are elections which of a applies. To Fifteenth Amendment extend Mancari permit classifica- State, this context would be to racial tion, to fence out classes of its citizens from decision- whole making in Amendment critical state affairs. Fifteenth forbids this result.
B voting franchise Hawaii that the limited further contends holding the rule of of cases sustainable under series special pur person, pertain to one one vote does not certain pose irrigation as water or districts. See Ball districts such *24 (1981); Salyer Co. Tulare James, v. 451 355 Land v. U. S. Storage Just Dist., Lake Basin Water U. S. argument significant as the Mancari would have involved application case, so it is far from extension or new of that too applicable Salyer line of would be at all clear that the cases agency powers an the to statewide elections for with responsibilities of OHA. any dispositive event, would not find those cases
We one-person, question is not The before us the however. the requirement Amendment, the Fourteenth but one-vote neutrality Our race Amendment. command of Fifteenth special purpose suggested com- not that district cases have pliance one-person, rule the Fourteenth with the one-vote compliance Amendment the Fifteenth somehow excuses argument reject four here. held Amendment. We We authority polit- ago decades that state over boundaries though subdivisions, is, ical met and over- “extensive it is come Fifteenth to the Constitution.” Amendment has Gomillion, S., Fifteenth Amendment 364 U. at 345. The deny may independent meaning and force. A State not abridge right race, to and this law vote on account does so.
c voting argument is that does Hawaii’s final restriction alignment between the no more than ensure an of interests Thus, con- fiduciaries and the beneficiaries of a trust. beneficiary goes, tention the restriction is based on status rather than race. own matter,
As an the contention on its initial founders sym- for it is not clear is terms, classification programs metric with the beneficiaries of the adminis- OHA Although ters. the bulk of the for which OHA re- funds sponsible appears to of “native be earmarked for the benefit permite Hawaiians,” the “native State both Hawaiians” “Hawaiians” vote for the The officeof trustee. classifica- appears tion thus not create, eliminate, a differential alignment identity between of OHA trustees and what the State calls beneficiaries. argument grounds.
Hawaii’s fails on The more essential position demeaning premise rests, State’s in the end, on particular qualified that citizens of a race are more somehow reasoning than others vote on certain That matters. meaning attacks the central of the Fifteenth Amendment. “any public applies Amendment in which election public issues Terry, are decided or officials selected.” S.,U. at 468. There is no room under the Amendment for *25 concept right particular that to vote a can election be qualify allocated based on race. Race cannot some disqualify democracy. participation others from full in our regardless selecting All citizens, race, have an interest policies poli- officialswho make behalf, on their if even those groups cies will affect some more than others. Under Fifteenth Amendment voters are not as members of treated citizenry. a distinct race but as members the whole may any Hawaii not petitioner assume, race, based on that other of principled accept its citizens will not cast To a vote. position give advanced to the State would rise indignities, resulting same and the same and ani- tensions designed The Amendment to eliminate. mosities, the was voting prohibited the Fif- is restriction under review teenth Amendment.
[*] [*] [*] way people are all but culture and of life of a When the history engulfed beyond loss control, their sense of their dismay may may through generations; and their extend down by many larger community. As be shared members of the attempts it realities, these the State of Hawaii to address begins always, political must, that as seek the consensus necessary begin- purpose. with a sense of shared One ning points principle: of the United is The Constitution this heritage citizens of of all the States, too, has become Hawaii. the elec-
In this ease the Amendment invalidates Fifteenth qualification ancestry. judgment of the toral on based Appeals Court of Circuit is reversed. the Ninth
It so ordered. Justice Souter Breyer, joins, Justice whom in the result. concurring says agree with its
I the Court with much what agree I do not with the critical rationale result, but justify seeks to its underlies result. Hawaii by drawing analogy of Hawai- an between its Office scheme (OHA) for the of an Indian ian Affairs and a trust benefit deny analogy. majority directly It tribe. The does not point argument’s sake, assumes, instead at one at least for “ proceeds” ‘public at that the “revenues and issue are from deciding also without Ante, trust.’” at 521. It assumes that the could “treat or native Hawaiians State Hawaiians Leaving undecided, issues Ante, 519. these tribes.” vot- Hawaii’s it holds that the Fifteenth Amendment forbids *26 agency,” ing and thus is state scheme, because “OHA election to the “the OHA board not internal affair of a quasi sovereign,” such an Ante, as Indian tribe. at 520.
I no need, however, see decide this ease on the basis of vague concept “quasi sovereign,” so and I do not sub- consequently sweeping prohibition. scribe to the Court’s my reject jus- Rather, in we should view, Hawaii’s effort to tify through analogy its rules to a for an trust Indian tribe (1) because the record makes clear that there is no “trust” (2) here, native Hawaiians OHA’s electorate, as sufficiently defined in the does not statute, resemble an Indian tribe. majority though agree, seems to it does not decide,
that the OHA bears little resemblance to a trust for native Hawaiians. It notes that the Hawaii Constitution uses the referring word “trust” when to the million 1.2 acres of land granted in the Admission Ante, Act. 521. But the Admission Aet itself makes clear the 1.2million acres is to people specifies benefit all the The Act Hawaii. that the land is to be used developments of, for the education homes making public improvements for, and farms for, public by, use all of Hawaii’s citizens, as well as for the 5(f). § betterment of those who are “native.” Admission Act funding Moreover, OHA comes from several different e.g., sources. Report See, OHA Fiscal Annual (hereinafter ($15 Report) Annual million from the 1.2million public “[dividend acres of lands; million from $11 and in terest legislative income”; appropriations; million from $3 $400,000 from grants). federal and other All of OHA’s fund ing by ordinary is authorized g., state e. See, statutes. Haw. (1993); Rev. §§ 10-4, Stat. 10-6,10-13.5 see also Annual Re (“OHA’s port legislative budget passed fiscal 1998-99 was as Acts 240 legislature”). and 115 the 1997 The amounts funding funding subject change by sources are thus ordinary legislation. spends most, OHA all, but not of its money many ways. to benefit native Hawaiians in different (OHA Report projects support Annual education, See hous *27 development, nonprofit ing, or health, culture, economic simply ganizations). majority clear, makes OHA is As the government. department special purpose of Hawaii’s state Ante, at 520-521. way in a importantly, the statute defines electorate
As analogous membership Indian Na- that is not to in an tribe. analogous may group, be Hawaiians, tive as a considered not But does tribes of other Americans. the statute Native it adds to Hawaiians. Rather limit the to native electorate addi- approximately 130,000 about 80,000 native Hawaiians including anyone one an- tional defined as “Hawaiians,” thereby including prior 1778, cestor lived in Hawaii who original than one five-hundredth individuals who are less generations 1778 and (assuming nine between Hawaiian present). Data Book Hawaiian See Native spent specifi- Approximately 10% 15%of funds OHA’s are cally Report group, see Annual to benefit this latter the OHA electorate. now 60% of which constitutes about any I tribal have been unable to find Native American Claims Set- definition that is so broad. The Alaska Native person of example, as “a tlement defines a “Native” Act, for degree or one “who one-fourth more Alaska Indian” village regarded or Na- as Alaska the Native an Native whose group tive be of which he claims to a member any regarded village or father or as Native mother is ... (a likely group” perhaps real more to reflect classification any quantum group membership requirement). blood than 1602(b). § Many define mem- tribal constitutions U. S. C. having ap- bership name an ancestor whose terms of had past. See, peared in the far less distant on tribal roll—but g., e. Oklahoma, Art. of the Choctaw Nation Constitution approved (membership persons II final consists of on rolls descendants); Sac 1906 and their lineal Constitution (membership II Oklahoma, Fox Art. Tribe of Indians of born persons children since consists of on officialroll mem- born to one Tribe, members of the and children two council); ber and a nonmember if admitted Revised (member- Apache Tribe, Constitution of the Jicarilla Art. Ill *28 ship persons of consists on officialroll of 1968 and children three-eighths of one member of the Tribe who are at least blood); Apache Jicarilla Indian Revised Mesca- Constitution Apache (membership persons lero Tribe, IVArt. consists of on the official roll of 1936 and children born to at least one degree enrolled member who are at Mesea- one-fourth least blood). Apache lero authority course,
Of has Native American tribe broad membership. to define its See Santa Clara Pueblo v. Mar tinez, 436 U. 49, 72, must, S. n. 32 however, There be some limit on is reasonable, what at the least when State (which tribe) is not itself a creates the And definition. membership possible define that in terms of 1 ancestor thereby creating body out of 500, a vast and unknowable potential leaving some combination of luck and members— potential interest to determine which members become ac goes beyond any tual well limit. It was reasonable voters — not a but tribe, Hawaii, rather the State created this any pointed definition; and, Ias have it is like actual out, not membership by any classification created actual tribe. my destroy
These are sufficient, circumstances view, analogy justification depend. on which Hawaii’s must say This is not to that Hawaii’s definitions themselves inde- pendently post, violate 535-536, Constitution, ef. n. dissenting); only say is that the it (Justice Stevens, analogies they here offer are too distant to race-based save a clearly definition that in their absence would violate agree the Fifteenth Amendment. I with For that reason majority’s ultimate conclusion. joins Ginsburg Stevens, with whom Justice Justice dissenting. toas Part II, holding repetition today largely
The Court’s rests on the glittering generalities any, application if little, that have history compelling When that to the of the State Hawaii. history against purpose of the Four- up the manifest is held against two centu- Amendments, and Fifteenth teenth it is clear to me law, Indian ries of this Court’s federal upheld. should be Hawaii’s election scheme I According which Hawaii of the federal Act the terms of that State’s Union, and to the terms was admitted to (OHA) Affairs of Hawaiian laws, Constitution Office managing in trust for charged acres of land held vast Polynesians occupied the Hawai- who descendants Captain In ad- Cook. ian Islands before 1778 arrival *29 administering assets, OHA proceeds to the from these dition special providing for responsible programs benefits for is to in 1978 an amendment native Hawaiians. Established to multi- Constitution, OHA was intended advance the State relationship ple carry the goals: out the duties of trust indigenous peoples the and islands’ the Government between wrongs compensate past States; to the of the United distinct, peoples; help preserve the ancestors of these and to indigenous that centuries before Cook’s culture existed for Hawaii, explained by from arrival. As the senior Senator Inouye, but not a native Hawaiian Senator who is himself (like petitioner) majority of Hawai- rather is a member of the supported amendments, the amend- ian voters who the 1978 part attempt “an on the ments reflect honest sincere rectify wrongs past, people of the of Hawaii to put [of] being government— into the mandate our Federal Hawaiians.”1 betterment the conditions of Native Cu E to Brief for Hawaii as Amicus App. Congressional Delegation E-3. motivation for explaining riae In a statement the cultural amendments, out that the entire Senator Akaka the “fact pointed State of voted to to establish Hawaii amend State Constitution recog significant the Office Hawaiian Affairs is because it illustrates as the founda nition of the of Hawaiian culture and traditions importance Id., tion for the E-5. spirit.” Aloha Today the Court concludes that Hawaii’s method of elect- ing the trustees of OHA violates Fifteenth Amendment. reaching In conclusion, has the Court assumed that the programs assumption administered OHA are valid. That my surely judgment, is however, correct. In the reasons supporting legitimacy gen- programs of OHA and its holding eral undermine the for the basis Court’s decision provision its trustee election invalid. The election OHA provision violates neither the Fourteenth nor Amendment the Fifteenth. keeping overlapping prin-
That conclusion in with three ciples. First, be, the Federal must has Government carrying obligations been, afforded latitude wide out its arising special relationship aborigi- from the it has peoples, category nal that includes the Hawaiians, native part territory whose lands are now a of the United In States. addition, there exists in this case the State’s own fiduciary responsibility arising from its establishment of a — public administering granted trust —for assets it the Fed- part eral Government in for the benefit of native Hawaiians. Finally, ignore one even if were the more than two centu- precedent practice ries of Indian law on which this case follows, simply present there is *30 no invidious discrimination in this effort indigenous peoples compensated to see that are past wrongs, preserve for and to a distinct and vibrant cul- part heritage any. ture that is as much a of this Nation’s
II
Throughout
history,
recog-
our Nation’s
this Court has
plenary
both
power Congress
nized
over the affairs
2
fiduciary
Native Americans
special
and the
character of the
2See,
g.,
Government,
e.
Alaska Native Village
522
Tribal
v.
of Venetie
U. S.
Wheeler,
520, 531,
United
(1998);
States
6
313,
n.
v.
S.
435 U.
319
(1978); United
States v. Antelope,
Morton
641,
(1977);
430 U. S.
v.
Mancari,
Hitchcock,
535, 551 (1974);
Lone
417 U.
S.
U. S.
Wolf v.
United States v.
(1903);
(1886).
Kagama,
564-565
federal with descendants ereign peoples.3 The Federal Government’s source inhabitants, responsibility who the Nation’s native toward military subject European con- then American and were explained by terms, quest, in the crudest Court has been this they remain instructive nonetheless. but They are the of the nation.
“These Indian tribes wards dependent De on the United States. are communities daily Dependent for pendent largely food. for their very and political rights.... their weakness From their dealing largely helplessness, to the course of due so and the treaties with them of the Federal Government duty promised, there arises the has been which it always power. has protection, it the This and with by Congress, recognized Executive and been arisen,” question has court, this whenever (1886) Kagama, 383-384 United States v. U. S. original). (emphasis in recognized, Congress’ ple- consistently
As our
have
cases
peoples
time and
nary power
been exercised
these
has
over
peoples
implement
duty
provide
again
native
a federal
respect to the
special
protection.’”4 With
“‘care and
moneys
example, “public
have
Mexico,
Pueblos in
New
implements
farming
expended
presenting them with
been
and instruction.”
in their civilization
utensils,
28, 39-40
Sandoval, 231 U. S.
United States v.
(BIA)
Today,
adminis-
Affairs
the Federal Bureau of Indian
comparably
responding to
programs
countless modern
ters
housing,
including health, education,
pragmatic concerns,
Register,
impoverishment.
the Federal
United
See Officeof
pp.
Federal
311-312.
1999/2000,
States Government Manual
practical
regulation
strictly
to the
in this area is not limited
*31
3
(1913);
118
See,
Sandoval,
States v.
531 has but as well the of cultural val- encompassed protection ues; of American desecration Native example, graves and other sacred sites led to the of the Amer- Native passage ican 25 Act, Graves Protection and U. S. C. Repatriation seq. 3001 et § neither the extent
Critically, Congress’ sweeping power nor the character of the trust relationship indigenous has on the ancient racial peoples depended origins the allotment of tribal the coherence or exist- lands,5 people, of tribal ence or the definitions of self-government,6 varying “Indian” has chosen to it Rather, when Congress adopt.7 comes to the exercise of in Indian Congress’ plenary power affairs, this Court has “numerous occa- taken account sions” on which out Indians for “legislation par- singles ticular and treatment” has been and has con- special upheld, cluded that as as the treatment can be tied “long special to the fulfillment rationally Congress’ obligation unique 5See, e. (1909). Celestine, g., United States v. 278, 286-287 215 U. S. 6 John, See United States v. (1978) (“Neither the fact U. S. merely Choctaws in are a remnant of a Mississippi larger group of Indians, long removed ago from nor the fact that Mississippi, federal supervision continuous, over them destroys has not been power the federal Weeks, them”); Delaware deal with Tribal Business Comm. v. U. S. 73, 82, (1977) (whether n. 84-85 or not federal statute finan providing cial benefits to descendants of Delaware Tribe included nontribal Indian beneficiaries, rationally the ful Congress’ only choice need be “‘tied ” fillment of Congress’ unique obligation Mor (quoting toward the Indians’ Mancari, 555)). ton v. S., 417 U. generally Cohen, See F. Handbook of Federal Indian Law 19-20 (“The §479 Compare 25 U. S. C. term ‘Indian’ as used this Act shall persons include all any Indian who are recognized descent members Indian tribe now under jurisdiction, persons Federal and all who are de were, 1,1934, scendants of such who residing members on June within the present any reservation, boundaries of Indian and shall further include all other persons of one-half or more purposes Indian For the of this blood. Act, Eskimos and other considered aboriginal peoples of Alaska shall be Indians”) (Indian 1603(c)(3) §with any person the Secre “considered tary of the Interior be an Indian for any purpose”).
532 legislative judgments will not be Indians, towards the such Mancari, 417 U. 554-555 535, Morton S. disturbed.” v. (1974). grounds by majority history reveals,
As the recited power recognizing are of trust here for the existence federal Shortly 1898, in overwhelming. its annexation before (installed by Republic United merchants of Hawaii States Government) the United States revolution facilitated expropriated of it then ceded acres land that some 1.8million establishing Organic Act to the United In the States. Congress provided lands Territory Hawaii, that those govern- of the territorial should remain under the control by Congress,” Apr. provided Act ment “until otherwise Congress By rec- 30,1900, 339, 1921, eh. 159. §91, Stat. ognized foreign diseases, mass infectious that influx of immigration housing hun- poor sanitation, and coupled with ante, ger, at 506. their toll. See malnutrition had taken had reality people the Hawaiian Confronted with the cities,” into the been “frozen out of their lands and driven (1920),Congress Cong., Rep. Sess., 4 839, H. R. No. 66th 2d specific ceded in decided that of the lands tracts provide comprising 203,500 acres, should be used about July 9, Act of farms residences for native Hawaiians. previ- Relying precedent of on the 42,42 eh. Stat. 108. rights public special granting federal Indians ous laws Congress Homes Commission lands, created Hawaiian implement goal rehabilitating people its the native required adopt this Act as a condi- culture.8 Hawaii was Sess., 4,11 839,66th Reflecting Rep. See H. R. No. 2d Cong., supported special who sponsor legislation, between the compromise veins,” plantation for “all Hawaiian blood their benefits who have qual should pure blood” only owners who “Hawaiians thought before the Senate Com ify, Hearings Hawaiian Homes Commission Act: Sess., Territories, 13500, 66th 14-17 Cong., mittee on 8d Rep. H. R. No. (1920), descendant not “any statute defined a “native Hawaiian” inhabiting the Hawaiian less of the blood of the races part than one-half 1778,” 42 previous to Stat. 108. Islands *33 the Hawaii Admissions tion of statehood in Statehood Aet (Admissions Act), § an to 4, 73 Stat. 5. And in effort secure § duty indigenous peoples, the Government’s the 5 of the conveyed Act Admissions 1.2 million acres of land to the to be State held in trust “for the betterment of the conditions public purposes. of and native Hawaiians” certain other 5(f), § id., at 6. relationship special
The nature of and motivation for the indigenous peoples between the and the States Gov- United ernment explicit was articulated in detail in when Con- gress adopted containing “apol- a Joint Resolution formal ogy to Native Hawaiians on behalf of the United States Kingdom the overthrow of the of Hawaii.” 107 Stat. 1510. Among acknowledgments, other stated that resolution the 1.8 million acres of ceded lands had been obtained “with- compensation out the consent of or Native Hawaiian people government.” sovereign Id., or Hawaii their 1512. rely end,
In however, one need not this even on offi- apology cial to discern a well-established federal rela- trust tionship many Among the native Hawaiians. passed Congress carrying duty varied laws out its indigenous peoples, today expressly more than 150 include part native Hawaiians as of the class of Native Americans By classifying benefited.9 native Hawaiians “Native purposes Americans” for Congress of these has statutes, enjoy many made clear that native Hawaiians of “the same rights privileges Indian, accorded to American Alaska
9See Delegation as Amicus Curiae Congressional Brief for Hawai'i g., e. A; also, Act, see App. Religious American Indian Freedom 42 et seq.; § U. C. 1974, 42 S. 1996 Native American Programs Act U. S. C. §§ 2991-2992; Act, Comprehensive 29 U. S. Employment Training G. § 872; Treatment, Drug Prevention, Act, Abuse and Rehabilitation § 1177; Aet, U. § 958, S. C. Cranston-Gonzalez National Housing Affordable 4422; 1988, 25 § 104 Stat. Indian Health Care Amendments U. S. C. et seq.
Native, Eskimo, and Aleut communities.” U. S. C. 11701(19). 11701(17) (“The § § See also of the Con- authority under United States Constitution gress legislate matters affecting aboriginal indigenous peoples in matters United States includes to legislate authority Hawaii”). native of... affecting peoples this While splendidly acknowledging history specifically — and enactments the his- the series including agreements reveals —the fails to its tory majority recognize import. of the native Hawaiians share with the *34 descendants on descendants of the Native Americans the mainland the Aleutian Islands not a of at the only history subjugation a forces, hands of colonial but also created and purposefully the with Govern- specialized relationship “guardian-ward” ment of tar- States. It follows that United legislation must be evaluated native Hawaiians according geting the same that this Court understanding protection equal has to the Indians on the United continental long applied that be States: treatment... tied to the “special rationally fulfillment the native toward Congress’ unique obligation” atS., 417 U. 555. peoples. to confront the rather of the fore-
Declining simple logic would the OHA going, majority seemingly reject a scheme for different First, reasons. pair Congress’ is trust-based confined to with not tribes, power dealings and no tribe or individuals, indigenous entity sovereign Ante, the native Hawaiians. at found 518-520. among Second, State,” the elections are “elections of the not of a State, this law would “to tribe, be permit upholding classification, racial to fence out whole classes of citizens Ante, from critical state 522. affairs.” decisionmaking In these reasons view, neither of overcomes other- my wise our similarity, compelling fully supported prece- dent, of the between the once subjugated, indigenous peoples Hawaiian continental United and the States peoples parallel sufferings those Islands whose historical and status of the continental Native Americans.
Membership majority suggests, than tribe, in a rather membership has descendants, in a race or class of been governmental qua power sine in the realm of Indian non majority prop- itself, the makes law; contends, Mancari this Ante, But have osition clear. at 519-520. as scholars often pointed membership out, tribal cannot be seen as deci- upholding pref- opinion sive in this Court’s the BIA factor hiring preference Mancari; erences in at issue in that only case it Indians, not extended nontribal member also required eligibility possess ethnic Americans Native quantum Indeed, certain of Indian Federal blood.10 simply special its deal- Government has not been limited in ings peoples affecting with the or tribal native laws tribes supra. prec- light Indians alone. See In 6, 7, nn. this painful irony it is a edent, to conclude native indeed designed special Hawaiians are not entitled to benefits they self-governance restore a measure of native because currently any government vestigial possibility lack native —a history of which and the this Nation have de- actions of *35 prived them.11
10See, e. g., Frickey, Adjudication and its Discontents: Coherence Law, Conciliation in 1754, Federal Indian 110 Harv. L. Rev. 1761-1762 (1997). As is aptly explained, the BIA in that was preference case based on a statute that extended the preference to ethnic Indians —identified blood quantum federally were not members recognized tribes. —who § 479. 25 S. C. Only U. a regulation included mention implementing membership, tribal required but even that that the tribal regulation Mancari, member also “‘be one-fourth or Indian degree more blood.’” S., 553, 417 U. at 24. n. 11 Beeyee Justice suggests that the OHA definition of native Hawai (¿ e., scheme) ians Hawaiians who may vote trader the is too broad OHA Ante, result). to be “reasonable.” at 527 concurring sug This (opinion gestion does not a issue is identify constitutional defect. The in this case Congress' and Con to power define who an indigenous counts as person, gress' power delegate to special duty persons to States its to so defined. Bbeyek’s (Justice in tribal definitions of membership interest in—and we are
Of concern is the fact that to greater majority en- confronted here with a state constitution and legislative entire majority passed by population actment — law a tribe Hawaii —rather than a or passed by Congress g., ante, e. See, itself. at But as our own 519-522. prece- clear, dent makes this does not alter our analysis. reality As its trustee can I have OHA and elections explained, as an “affair of characterized State” be hardly simply the Fed- alone; are instruments for they implementing membership this Court’s tribes’ is at holding power to define constitutional sovereignty core of tribal thus “unconstrained those authority,” as federal or state provisions specifically framed limitations on (1978) Martinez, 49, v. inappo- Santa Clara Pueblo 436 U. thus S. — is site.) Nothing in law in jurisprudence suggests federal our Indian law perfectly that the OHA definition of native within that anything but 531-534, Indeed, delegated. See 6-7. power supra, at and nn. congressional OHA voters match the set of to precisely people whom apology was targeted. rely ability Federal definitions of “Indian” on the to trace one’s often See, CFR,
ancestry ch. particular group g., to a time. particular at e. (1999) §5.1 1, preference BIA to of Indian de- (extending hiring “persons (b) were, who on scent who are... of such members [descendants [tribal] 1,1934, June within Indian reserva- residing present any boundaries of tion”); 7, once 1934is two supra. hardly see also n. It can be correct that will this past, years past, centuries rather than classification merely defining “native” singular cease be “reasonable.” The federal statute Breyer 1602(b) § (including those points, which U. S. C. Justice quantum membership any group), defined without regard blood in a “tribal" structure point membership serves underscore the se, ante, of federal per see is not the acid test the exercise Clinton, Price, Newton, & American this arena. See R. N. M. power (3d 1991) Indian Law 1054-1058 ed. the Alaska (describing provisions of Native Settlement Act of natives with creating geographic regions Claims § interest, regions common 43 U. S. C. heritage requiring those *36 benefits, organize corporation qualify to a native in order to for settlement 1607, moneys § to be establishing the Alaska Native Fund federal 535, natives,” 1604-1605); §§ to supra, distributed “enrolled see also end, indigenous n. 10. In the what matters is that the determination ante, (Breyer, membership,” concurring status or “real at 526 J., group result), to by by is one be made this Court. Congress—not sovereign eral relationship Government’s trust a once with indigenous people. This Court has held more than once that power pass fulfilling the federal to laws federal trust relationship may delegated with the Indians be States. significant Washington opinion Most is our v. Confeder ated Bands and Tribes Nation, 463, Yakima U. S. (1979), upheld against 500-501 we which Fourteenth challenge assuming jurisdiction Amendment a state law over recognized Indian tribes within a State. we While generally special relationship States do not have the same has, Indians that the Federal Government concluded we that because response the state law was enacted “in accomplished federal measure” intended to achieve the result by challenged only state law, the state law itself need “'rationally purpose further the identified State.’” (quoting Id., at 500 Massachusetts Bd. Retirement v. Mur (1976) curiam)). gia, 427 (per U. S. statutory
The state was and constitutional scheme here question without implement express intended to desires § of the Federal Government. The Admissions Act in man- provisions dated that the of the Hawaiian Commis- Homes sion adopted,” Act multiple provisions “shall be with its expressly benefiting native Hawaiians and not others. 73 More, Stat. required pro- 5. Act Admissions that the granted ceeds from the lands “shall be held State said public State as a trust . for . . the betterment of proceeds conditions of Hawaiians,” native and that those managed “shall disposed be manner as the of... in such may constitution and provide, laws said State their any object use for other shall constitute a breach of trust for § may brought which suit be id., the United States.” at 6. The clear, terms of the trust were the discre- was granted tion to the State to administer the trust as the “may provide.” Congress State’s laws And continues understanding thereby furthering fund OHA on the that it is obligation. federal trust *37 and Yakima under Mancari The sole remaining question the thus the scheme is whether State’s “rationally further[s] standard, the this as identified State.” Under by purpose Mancari, the OHA re- the BIA preferences is “self- certainly designed promote quirement reasonably the Hawai- descendants indigenous government” by the needs of its ians, and to make OHA “more responsive Mancari, S., 417 U. The OHA constituent 554. groups.” the is to be held and statute “separate” agency provides branch,” the executive Haw. Rev. [State] “independent § its trust, which, 10-4 OHA executes (1993); very Stat. by benefit of must be administered for the Hawaiians character, Hawaiians, 10-2, 10-3(1), 10-13.5; §§ and OHA is native to be of trustees that will reflect the board governed beneficiaries, of the trust’s native Hawaiian Haw. interests XII, 13D-3(b) § § Stat. Const., (1993); Art. Haw. Rev. the OHA is thus “directed to participation by governed Mancari, atS., 417 U. 554. In this governing agency.” others, is respect among requirement “reasonably to a related based nonraeially directly legitimate, goal.” Ibid. reasons are me more sufficient to than foregoing OHA trust trustee election
justify system provision under Fourteenth Amendment.
I I I the Fifteenth Amendment tests the OHA Although measure, scheme to me that a different it clear equally election violates neither letter nor trustee provision of that Amendment.12 spirit 12Just of this from an as one cannot divorce Indian law context case Amendment, analysis of the OHA scheme under the Fourteenth neither one this within our cases under pretend simply can law fits non-Indian of Mancari Amendment. As the preceding Fifteenth discussion reveals, law Court has understood laws our other Indian cases this never defined legal classifications relating indigenous peoples simply *38 provides: Fifteenth Section 1 of the Amendment right to of citizens of United vote shall '‘The States by abridged not be denied or the United or States any previous race, color, on or condition State account of of servitude.” U. Arndt. 15. Const., S. majority tacitly 513-514, admit, ante,
As itself must at apply. of the not here The terms Amendment itself do qualification speaks ancestry and cur- OHA voter in terms rent voters residence, not of race or color. trustee OHA “any aborig- meaning must be descendant of the “Hawaiian,” peoples inhabiting inal the Hawaiian Islands which exercised sovereignty subsisted in the Hawaiian Islands peoples and which have continued to reside in thereafter § ability Hawaii.” Haw. Stat. The to vote Rev. 10-2 modern-day is a function of the lineal a resident descent of of Hawaii, not the of that resi- blood-based characteristics proximity or dent, of that resident to blood-based “peoples” from whom that descendant arises. ancestry
The distinction race than between is more simply plain ability language. to one The trace one’s an- cestry particular progenitor single point to a distant at a may convey apparent time no one’s information about own acknowledged today. necessity race Neither does it of imply particular one’s own or the race, identification with a any exclusion of others “on race” The terms account manifestly carry ancestry meanings, in- distinct was not prohibitions. cluded the Framers in the Amendment’s Presumably recognizing majority re- distinction, this “[ajncestry proxy on lies the fact that be a for race.” can Ante, at is, 514. That it means course, true, but no where, here, race. Even unlike requirements express, blood are quantum this Court has repeatedly that an in- acknowledged overlapping political terest predominates. It is to this entire only by refusing face Court’s ante, law, 511-512, body of Indian see majority that the is able hold qualification the OHA “on right denies to vote non-“Hawaiians” account of race.” ancestry always proxy for race. Cases
follows dramatically proxy ancestry dif- as such a are which served literacy requirement example, ferent from this one. For (1915),relied States, 238 U. 347 at issue in Guinn United S. v. proxy. part efforts As of a series blatant on such voting, exempted lit- from its exclude blacks from Oklahoma eracy entitled requirement people were whose ancestors prior of the Fifteenth Amendment. to the enactment vote . only perpetuate patently .. "served scheme Guinn *39 [racially discriminatory voting] a trans- laws and to effect old Guinn, parent As in Ante, racial at 513. exclusion.” voting Amendment the Fifteenth laws held invalid under fairly properly by majority all of the eases were cited specific through specialized lens honed viewed a lens—a history be- place, and time, detail the realities of to reveal voting being hind the tested. restrictions reali only clarify, fully lens fails to obscures That not it virtually polar Fifteenth opposite case, ties of this Terry v. In relies. Amendment eases on which the Court (1953), that example, held for the Court Adams, U. S. primaries” "Jaybird proscribed the the Amendment Texas pro single voting qualifications that "with a used neutral Similarly, Negroes id., are at 469. excluded,” viso — Smith v. (1944), bla Allwright, it was the 321 U. S. by political Negroes” against practiced tant a “discrimination meaning party was held to be state action within that "strike down the Amendment. such as these Cases systems class designed racial these exclude one ... (at least) application no voting,” ante, 513-514, have from remaining system designed empower politically to a sovereign, people. indigenous members once of class of Ancestry surely pretext for proxy race, can be a simply neither But it is invidious discrimination. racial eligible proxy persons are pretext nor All of the who here. qualifications that share two vote for the trustees OHA They possesses: bene enough are person no other old to vote by public ficiaries of the trust created the State and adminis they OHA, tered have at least ancestor who was one provide a resident of Hawaii in whose 1778. A trust terms including that the trustees shall be elected a class bene hardly concept. ficiaries is a novel 2 A. & W. See Scott (4th 1987). § Fratcher, Law of Trusts ed. The Commit 108.3 voting qualification explained tee that drafted that the trustees here should be elected the beneficiaries because “people belong to whom assets should have control over repre them .... The election of board will enhance governance accountability decision-making sentative strengthen relationship and, as a fiduciary result, be tween the board member, trustee, and the native Hawai beneficiary.”13 purpose aspect ian, as The of this described wholly apart of the classification thus exists from race. directly delegated promoting It focused on both the fed eral mandate, and the trustee terms of the own State’s responsibilities. majority makes much of the fact the OHA trust— *40 legitimate principally it
which assumes is be read as —should intended to the smaller Hawaiians,” benefit class of “native who are defined as at least one-half a descended from native § 10-2 (1993), islander circa 1778, Haw. Rev. the Stat. not larger “any of class “Hawaiians,” which includes descendant” aboriginal people of those who lived in Hawaii in 1778 and peoples “which thereafter have continued reside major Hawaii,” ante, is, all, ibid. See It after the 523. ity larger enjoys the notes, class of Hawaiians that the suf frage right in OHA elections. There is a mis therefore alignment match in interest the trust beneficiaries between majority and the trustee the electors, contends, and it thus qualified cannot said be that the of class voters here is de solely by beneficiary fined status. 1978,
13 1Proceedings of the Constitutional Convention of Hawaii of Standing Committee Rep. p. No. 644. the not true upon or be may
While may depending trust, the there is of the terms of nothing construction surely eli- the class of a decision to invidious about enlarge racially of a 1778 resident to include descendant” voters "any gible The broader of voters eligible of the Islands. category that, ensure how “di- regardless serves quite practically the Hawaiians becomes —a phenomenon lute” race native summary, in the lavish historical also described majority’s a interest whose will remain ante, at 506-507—there cultural of a community, ancestors were part political, and memory inherited who have through participation trust seeks to of traditions putative set protect. it cannot be mismatch underscores reality only or the election that either the trust a racial interest purely interests secure; cultural seeks political provision native survival —shared both served are —unlike racial Hawaiians.14 Hawaiians and 14 course, be alignment about the absence of majority’s Of concern Mancari- something if one assumes that other than a only
comes salient this has cases political approached like classification is at stake. As Court Government, delegates, its involving relationship among Federal indigenous and the countless federal definitions peoples including — n. supra any Indians determined blood see quantum, "classes” — political aspect voting qualification eclipsed by "racial” here is indigenous class. significance membership once-sovereign this, Beyond account makes clear that majority’s even own historical the inhabitants of whose descendants constitute the the Hawaiian Islands much because of cul- significant instant are identified and remain class arrival, "the Hawaiian ture as because of race. the time Cook’s By 1,000 so, a cultural and over the developed, preceding years had people . ... a .. well-established traditions and customs and political structure *41 Ante, 1778, although at there “was polytheistic religion.” 500. Prior Housing Authority Midkiff, land,” Hawaii of v. ownership no private 229, (1984), orga- in highly U. S. the native Hawaiians “lived a nized, self-sufficient, communal land system subsistence social based on culture, 42 U. S. C. religion,” and sophisticated language, tenure with §11701(4). in Akaka, society steeped their "was According to Senator (land) environment, they] honored their ‘aina and and there- [and science aquaculture, navigation, agriculture, fore methods of irrigation, developed status of if one the beneficiary Even refuses recognize said that the trustee voters it cannot be OHA entirely,15 in stands the here ancestry-based voting qualification simply medicine, of the land and sea whereby and other forms subsistence fishing efficiently for the environ- damage. Respect were used without waste ment formed the of their and tradition.” App. and others basis culture Amicus Curiae E-4. E to Hawaii Congressional Delegation Brief for as another re- Legends passed generation oral histories from one are images, capes, songs, flected in artifacts such as carved colorful feathered Fire, some, Pele, that survive of still in- today. and dances For the God Kilauea, habits the crater of the word of is still law. It the Kahuna culture, Polynesian race, uniquely is this rather than the that is Hawaiian in protection. need of Breyer’s Justice even “there is no ‘trust’ broader contention that ante, here,” 525, the for native Hawaiians to make appears greater at conflating by mistake of the trust public established Hawaii’s Constitution laws, see supra, relationship at with the “trust” between the indigenous According Federal Government and to Justice peoples. the ante, Breyer, the on “analogy justification depend,” which Hawaii’s must (in “destroyed]” is not a trust part by the fact that OHA is trust) of a looking former sense for native Hawaiians alone. Rather than Breyer to the Justice public proposition, terms of trust itself for this relies on the of Admis conveyance part terms land to Hawaii sions Act. But does not portion the trust administered OHA purport to contain in its all 1.2 million of federal trust corpus acres lands Hawaiians, By set aside for the benefit of all native including Hawaiians. terms, only “[tjwenty per public its cent of all revenue derived from the land expended trust shall be for the condi office betterment § tions of native Hawaiians.” Rev. Stat. This por Haw. 10-13.5 tion appears precisely coincide with the one-fifth described purpose the Admissions Act lands trust to better the conditions native Hawai 5(f), § ians. Admissions Act 73 Stat. 6. Neither the fact that native Ha waiians revenues, have specific, only beneficial interest 20% of trust nor portion the fact that the of the trust administered OHA supple mented to varying degrees by negates nontrust the existence of moneys, the trust itself.
Moreover, neither the trust particular public terms the State’s nor particular “destroys” source of OHA funding centrally relevant trust on “analogy” which Hawaii relationship relies —that of the between continent, Federal Government and on this indigenous Indians com- pared with the relationship indige- between the Federal Government and *42 privilege penal-
shoes of a classification that would either or voting qualification— ize "on account of” race. The OHA part statutory place by put of a in vote scheme democratic majority including citizens, a multiracial all state those to non-“Hawaiians” who are not entitled vote OHA trustee every appropriately includes resident of Hawaii elections— having one ancestor who lived in the islands in 1778. at least things, among That audience to whom the con- other is, including gressional apology was Unlike a class addressed. Polynesians imagine only one would were full-blooded —as strictly the class race—the OHA election defined terms of provision Polynesians currently re- excludes all full-blooded siding are in Hawaii who not descended from a 1778resident Conversely, many of Hawaii. unlike of the old southern vot- ing any potential a “taint” of schemes which voter with ex- excluded, non-Hawaiian blood would be scheme OHA no a or is cludes descendant of 1778resident because he she part European, Asian, also or African as a matter race. here is both too inclusive and not in- classification thus enough along strictly clusive to fall racial lines. pains singularly identify
At to “racial then at work here purpose,” al- might ante, mean, at 517—whatever though might phrase “proxy” one for “racial assume majority “[o]ne posits discrimination”—the next principal reasons race is treated as a classification forbidden dignity person is that it and worth of a to be demeans judged by ancestry byof his or merit and instead her own qualities.” Ante, is, course, essential at 517. true That ancestry denying abridging one’s when the basis right blessings to it is vote or share the of freedom. But quite ancestry wrong ignore claims of the relevance of nous Hawaiians in the now Hawaiian That United States-owned Islands. only trust relationship analogy trust relevant to the Indian law —the —' includes the to the ex- power delegate States. As we have authority 581-534, supra, plained, the estab- surely the OHA scheme satisfies lished testing power. standard for an exercise of that *43 property, an interest in trust or to a shared interest in a proud heritage. demeaning nothing There would be in lawa manage provided that established a trust to Monticello that the elect the descendants Thomas Jefferson should equally benign, regardless trustees. law Such a would be happened whether those be of the descendants to members same race.16 light, easy why
In this it is to the classification understand “demeaning” simply here is not all, ante, at for it is “premise particular not on based the that citizens of a race qualified are somehow more to on than vote certain others permissible assumption matters,” It ibid. is based on in “any” this context that families ancestor who lived Hawaii 1778, and whose thereafter continued ancestors to compensation live in Hawaii, have a claim to and self- determination that others do multiracial ma- not. For the jority recognize of the to citizens of the State of Hawaii reality deep is not but to to demean their own interests those honor of others. why majority wrong thus
It becomes clear is likewise likely to conclude that OHA scheme is to “become hostility generating prejudice all instrument against ancestry persons particular too often directed whose 16Indeed, another, one form on right pass property “[i]n —to family one’s particular legal sys been part Anglo-American —has Irving, since feudal times.” Hodel 704, 716 tem v. Even 481 U. S. the most fractional minute interests that can be identified after allotted lands are passed through generations legal recognition several can receive Thus, protection. we held not shares long ago par inherited cels allotted to compensation the Sioux in 1889 could not taken be without even though necessary their value was nominal and it to use a common was 3,394,923,840,000 denominator of size the smallest inter identify Id., est. at 713-717. Whether it is for all of provide recompense wise to injured have descendants an class after come generations several is gone a matter of but were ac policy, the fact that their interests quired by no surely inheritance rather than has constitu assignment significance. tional their disclosed ethnic characteristics and cultural tradi- political Ante,
tions.” at 517. The and cultural concerns majority voters that motivated the nonnative of Hawaiian preserving through an interest in establish OHA reflected particular people ancient tradi- the self-determination of they voting qualification tions that value. The fact that the was established the entire electorate in State —the majority not native vast of which is Hawaiian—testifies *44 judgment concerning “prejudice their the fear of Court’s against hostility” majority the of state who are not residents petitioner. “Hawaiian,” Our understand- such traditional ing democracy preferences voting of makes it difficult to majority voting population that the of conceive the State’s against, a would have enacted measure that discriminates any hostility way represents prejudice toward, in that against majority. Indeed, self-same the insurance that best danger power is that the to revise the electorate here retains its laws.
IY overwhelming today ignores The differences be- Court case law on which it relies tween Fifteenth Amendment history unique and the of the State of Hawaii. The former age abject against recalls an discrimination an insular yielded minority long South; in the old the latter at last “political majority ante, seeks, consensus” claims it recognize special 524—a consensus to claim determined indigenous peoples of Hawaii. self-determination This of the District was the considered and correct view Judge for the the District United States District Court for Judges as the three on the Court Hawaii, as well Circuit Rymer Appeals Judge As for the Ninth Circuit.17 explained:
17Indeed, on the judges the record indicates that none the 20-plus circulated petition Ninth Circuit to whom en banc was rehearing even 44a. a vote on Cert. requested petition. App. Pet. for special equivalent to
“The election for trustees is not general election, and the vote is not for officials who governmental perform general will functions either representative capacity. or executive . Nor does the . . voting suggest limitation in these circumstances persons eligibility designed was who would exclude otherwise it Rather, be interested in affairs.... OHA’s responsibil- fiduciary reflects the fact that the trustees’ only ities run to native Hawaiians and Hawaiians and among ‘a board of trustees chosen from who are those parties way interested would best to insure be the proper management fidu- and adherence to the needed ciary principles.’18 challenged part law of Hawaii keep was not contrived non-Hawaiians from any general, respect pertinent legal or in to their inter- say [petitioner’s] right ests. Therefore, we cannot abridged to vote has been denied or violation of Fifteenth Amendment.
“18 1 Proceedings the Constitutional Convention Hawaii 1978, Rep. reporting Comm. No. 59 at 644. The Committee Standing on OHA, Section noted establishing further trustees should be so ‘people belong elected because to whom assets should have control over them.... will repre election the board enhance governance and, sentative decision-making as accountability result, strengthen fiduciary relationship between the board mem Id.” ber, trustee, Hawaiian, as beneficiary.’ the native as (CA9 1998). 146 F. 3d 1081-1082 my judgment, reasoning persuasive In her is far more than approach today. adopted wooden the Court Accordingly, respectfully I dissent.
Justice Ginsburg, dissenting. essentially
I
dissent
for
reasons stated
Justice
dissenting opinion. Ante,
Part II of his
at 529-
Stevens
(relying
authority
on established federal
over Native
Americans). Congress’ prerogative
special
to enter into
indigenous
relationships
peoples, Morton v.
trust
(1974),
cogently
Mancari,