Colonizing History: Rice v. Cayetano and the Fight for Native Hawaiian Self-Determination

32 Pages Posted: 23 Jun 2019 Last revised: 30 Jun 2020

See all articles by Lisset M. Pino

Lisset M. Pino

Yale University, Law School, Students

Date Written: June 15, 2019

Abstract

Rice v. Cayetano involved a challenge to the voting qualifications for Hawai‘i’s Office of Hawaiian Affairs (OHA). Created during the 1978 Hawaiian Constitutional Convention, OHA manages lands held in trust for Native Hawaiians. To ensure OHA was representative of its constituents, voting for OHA trustees was initially restricted to Hawaiians—persons who had one
ancestor in Hawai‘i in 1778. In Rice, the Supreme Court held that OHA’s voting restriction impermissibly used ancestry as a proxy for race in violation of the Fifteenth Amendment.

This Comment sets out the history of OHA, which the Supreme Court crucially omitted in
Rice. Using contemporary newspaper accounts and archival documents, I show that the creation
of OHA was the direct result of the Hawaiian land and sovereignty movements of the 1970s. The
idea to create OHA emerged from grassroots sessions in which Hawaiians came together to consider a path to self-governance. From the beginning, Hawaiians did not understand OHA as
simply a state agency but rather as an initial step toward Native Hawaiian self-determination.

Recognizing the origins of OHA calls into question the Court’s decision to frame Rice as a case
of racial discrimination and to evade the more complex question whether Native Hawaiians constitute a political community entitled to electoral self-governance. On the twentieth anniversary of Rice, the time is ripe to reconsider the historical account that underpinned the Supreme Court’s
opinion.

Keywords: hawaii, history, legal history, rice v. cayetano, fifteenth amendment, federal indian law, hawaiian history

JEL Classification: K40

Suggested Citation

Pino, Lisset M., Colonizing History: Rice v. Cayetano and the Fight for Native Hawaiian Self-Determination (June 15, 2019). Yale Law Journal, Vol. 129, No. 8, 2020, Available at SSRN: https://ssrn.com/abstract=3404685 or http://dx.doi.org/10.2139/ssrn.3404685

Lisset M. Pino (Contact Author)

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

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