Rice v. Cayetano

• Decision Date: 22 June 1998
• Docket Number: No. 97-16095,97-16095
• Citation: 146 F.3d 1075
• Parties: 98 Cal. Daily Op. Serv. 4773, 98 Daily Journal D.A.R. 6753 Harold F. RICE, Plaintiff-Appellant, v. Benjamin J. CAYETANO, Governor of the State of Hawai'i; Mazie K. Hirono, Lieutenant Governor of the State of Hawai'i, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1075

146 F.3d 1075

98 Cal. Daily Op. Serv. 4773, 98 Daily Journal

D.A.R. 6753

Harold F. RICE, Plaintiff-Appellant, v. Benjamin J. CAYETANO, Governor of the State of Hawai'i;

Mazie K. Hirono, Lieutenant Governor of the State

of Hawai'i, Defendants-Appellees.

No. 97-16095.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 1998.

Decided June 22, 1998.

John W. Goemans, Kamuela, Hawaii, for plaintiff-appellant.

Dorothy D. Sellers, Deputy Attorney General, Honolulu, Hawaii, for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii David A. Ezra, District Judge, Presiding. D.C. No. CV-96-00390-DAE.

Before JAMES R. BROWNING, BRUNETTI and RYMER, Circuit Judges.

RYMER, Circuit Judge.

Hawaii holds special elections for trustees of the Office of Hawaiian Affairs (OHA), who must be Hawaiian and who administer public trust funds set aside for the betterment of "native Hawaiians" and "Hawaiians," in which only people who meet the blood quantum requirement for "native Hawaiian" or "Hawaiian" may vote. ¹ There is a long history behind the use and structure of the public lands trust for the benefit of descendants of the original races inhabiting the Hawaiian Islands, none of which is challenged in this appeal. Rather, we must decide only whether Hawaii may limit those who vote in special trustee elections to those for whose benefit the trust was established.

Harold F. Rice, who is caucasian and not a beneficiary of the trusts administered by OHA's trustees, appeals the district court's summary judgment in favor of Benjamin J. Cayetano, Governor of Hawaii, upholding the voter qualification in a published opinion. ² Rice v. Cayetano, 963 F.Supp. 1547 (D.Haw.1997). We agree that the franchise for choosing trustees in special elections may be limited to Hawaiians, because Hawaiians are the only group with a stake in the trust and the funds that OHA trustees administer. They have the right to vote as such, not just because they are Hawaiian. For this reason, neither the Fifteenth Amendment nor the Equal Protection Clause precludes Hawaii from restricting the voting for trustees to Hawaiians and excluding all others. Therefore, as we have jurisdiction under 28 U.S.C. § 1291, we affirm. ³

I

A

Some history is helpful by way of background. ⁴

Hawaii was an independent kingdom from 1810 until 1893 when it was overthrown and replaced by a provisional government (the Republic of Hawaii) that sought annexation to the United States. The United States accepted the cession of sovereignty of Hawaii in the Annexation Act of 1898. 30 Stat. 750 (1898). As a result, roughly 1,800,000 acres of crown, government, and public lands were ceded to the United States. The Annexation Act provided, however, that all revenues from the public lands were to "be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes." Id. The Organic Act, passed in 1900, established the Territory of Hawaii and confirmed that the public lands ceded to the United States would remain in the possession of the government of the Territory for public works and other public purposes. Organic Act § 91, 31 Stat. 141 (1900), reprinted in, 1 Haw.Rev.Stat. at 84 (1993).

In 1920, the Hawaiian Homes Commission Act (HHCA), 42 Stat. 108 (1921), reprinted in, 1 Haw.Rev.Stat. at 191 (1993), set aside some 200,000 acres of public lands as "available lands" for nominal price leases to "native Hawaiians." HHCA § 203. The term "native Hawaiian" was defined to mean "any descendent of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778." HHCA § 201(7). HHCA responded to the fact that the number of full-blooded Hawaiians was decreasing and that the Hawaiian race required rehabilitation by being returned to the land. H.R.Rep. No. 839, 66th Cong., 2nd Sess. at 4 (1920). Accordingly, it specified that the trust was to be administered on behalf of the native Hawaiian beneficiaries of the Act. HHCA § 101(c).

Hawaii was admitted to the union as a state in 1959. Admission Act of March 18, 1959, Pub.L. No. 86-3, 73 Stat. 4, reprinted in, 1 Haw.Rev.Stat. at 90 (1993). In connection with admission, Hawaii agreed as a compact with the United States to adopt the HHCA, including its definition of native Hawaiians, as part of the state Constitution. Admission Act § 4. Article XII, § 1 of the Hawaii Constitution accomplished this. Further, the Admission Act provided that public lands held by the United States that were granted or conveyed to Hawaii pursuant to § 5(b) were to be held by Hawaii as a public trust for five purposes, one of which is "the betterment of the conditions of native Hawaiians." ⁵ Admission Act § 5(f). The other four purposes pertain to the public generally. ⁶

As it happens, no benefits actually went to native Hawaiians until the state constitution was amended in 1978 to establish the Office of Hawaiian Affairs. OHA was created to hold title to § 5(b) property (except for HHCA "available lands," which are separately administered by the Department of Hawaiian Home Lands) in trust and manage it for native Hawaiians and Hawaiians. ⁷ Haw. Const. art. XII, § 5. OHA administers for native Hawaiians a pro rata share (now twenty per cent) of the public lands trust that was created under § 5(f) of the Admission Act. ⁸ See Haw. Con. art. XII, §§ 4, 6; Haw.Rev.Stat. §§ 10-3(1), 10-13.5. It also administers appropriated funds for Hawaiians. Haw.Rev.Stat. § 10-3(2). Pursuant to the constitution and statutes enacted to implement it, OHA is governed by a board of trustees whose members must be Hawaiian and who are elected in special elections by qualified voters who are Hawaiian. Haw.Rev.Stat. §§ 13D-1, 13D-2, 13D-3(b)(1), 13D-4.

B

Rice was born and has always lived in Hawaii. While he traces his ancestry to two members of the legislature of the Kingdom of Hawaii, prior to the Revolution of 1893, Rice is caucasian and is not within the statutory definition of Hawaiian or native Hawaiian. See Haw.Rev.Stat. § 10-2.

In March 1996, Rice applied to vote in the August 1996 election for trustees of OHA. The registration form contained the following declaration: "I am also Hawaiian and desire to register to vote in OHA elections." Rice crossed off the phrase "am also Hawaiian and" and marked "yes" on the application. He is otherwise a qualified voter, but his application was denied since he is not Hawaiian.

Rice brought this action pursuant to 42 U.S.C. § 1983 challenging his exclusion from voting for OHA trustees on the grounds that conditioning eligibility on being Hawaiian violates the Voting Rights Act of 1965 as amended (42 U.S.C. §§ 1971 et seq.), ⁹ 42 U.S.C. § 1981, and the Fourteenth and Fifteenth Amendments of the United States Constitution. The district court concluded that the method of electing OHA trustees meets constitutional standards for the essential reason that the restriction on the right to vote is not based upon race, but upon a recognition of the unique status of native Hawaiians that bears a rational connection to Hawaii's trust obligations. In any event, the court noted, OHA performs no truly governmental functions and "is carefully constrained by its overall purpose to work for the betterment of Hawaiians." 963 F.Supp. at 1558. Having already disposed of other claims, the court entered summary judgment. Rice timely appealed.

II

Rice complains about the "extraordinary" authority and discretion that OHA, which is a state agency, is given to provide government services to a segment of the population defined exclusively by race, funded by a twenty percent share of revenues from the public lands trust which may lawfully be applied for the benefit of all people of the state without regard to race, and run by trustees who are voted into office by an electorate apportioned on a purely racial basis. He submits that the racial restriction on the right to vote violates the Fifteenth Amendment because it conditions the right to vote in statewide elections for trustees on membership in the Hawaiian race. It violates the Fourteenth Amendment, according to Rice, because this classification by race, and the corresponding racial restriction on the franchise, fails the test of strict scrutiny which must be applied to all distinctions based on race under Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). And, he contends for the first time on appeal, it also violates the anti-nobility prohibitions of the United States Constitution because it establishes immutable classes among citizens, giving some greater entitlement to political power than others, based solely on birth and ancestry.

Hawaii, on the other hand, emphasizes that neither the definition of native Hawaiians or Hawaiians, nor the designation of specific public lands for their benefit, nor OHA, nor its purposes, is at issue. That being so, it contends, the limitation of the right to vote for OHA trustees to Hawaiians and native Hawaiians is not a racial classification, but a legal one based on who are beneficiaries of the trusts in a special purpose, disproportionate impact election of the sort described in Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973). In any event, Hawaii points out, it did not intentionally discriminate on the basis of race because the genesis of the whole structure was Congress's requirement that the new state of Hawaii accept the definition of native Hawaiian in the HHCA and accede to the purposes of the § 5(f) trust which include, in part, betterment of the conditions of native Hawaiians. Finally, the state submits, its classification survives rational basis review (which is the appropriate standard) under Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), because the federal government and the state of Hawaii...