My Dearest Gentlefolk,

After so long a break in our stream of thought, I am made to wonder whether these musings ought to be re-christened a "Monthly Muse". But to miss one or two would then consume the better part of the year, rather than countenance a few weeks of silent repose. I therefore reaffirm my title and aspiration, for better or worse.

On Wednesday last, the Supreme Court of the United States announced that the manner of selecting trustees to administer a trust for the exclusive benefit of native Hawaiians violates the 15th Amendment of the Constitution.

The trust was established by the Federal Government to benefit native Hawaiians (being "any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778", the year that Cook arrived) and Hawaiians (being "any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778") whose family line has continuously resided in Hawaii since before 1778. The State, in implementing this trust, placed its control in a board of trustees consisting exclusively of members of the beneficiary class. By state referendum, with the overwhelming support of the majority of voters (most of whom are not beneficiaries), it was decided that the members of the board should be elected by the trust beneficiaries, i.e., Hawaiians and native Hawaiians, as these classes are defined under the terms of the trust. A ranch owner, whose ancestors arrived some time after Cook's famous landfall, attempted to cast his vote for the trustees and was turned down because he was not Hawaiian within the meaning of the trust. He sued.

The Supreme Court struck down Hawaii's "restriction" on voting as a violation of the 15th Amendment. The Amendment provides:

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."

The Court reasoned that confining the trust's franchise to its beneficiaries, in this case, is a denial of the right to vote on the basis of race. Writing for a majority of five, and joined by a concurring opinion by Justices Breyer and Souter, Justice Kennedy waxed poetic:

"Hawaii's argument fails on ... essential grounds. The State's position rests, in the end, on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters. That reasoning attacks the central meaning of the Fifteenth Amendment. The Amendment applies to 'any election in which public issues are decided or public officials selected.'... There is no room under the Amendment for the concept that the right to vote in a particular election can be allocated based on race. Race cannot qualify some and disqualify others from full participation in our democracy. All citizens, regardless of race, have an interest in selecting officials who make policies on their behalf, even if those policies will affect some groups more than others. Under the Fifteenth Amendment voters are treated not as members of a distinct race but as members of the whole citizenry. Hawaii may not assume, based on race, that petitioner or any other of its citizens will not cast a principled vote. To accept the position advanced by the State would give rise to the same indignities, and the same resulting tensions and animosities, the Amendment was designed to eliminate."

The words resonate with our most sacred political intuitions. Yet, for me at least, they are turned against their very core when applied here. The Court has elevated a "color-blind" norm to the level of formulaic irrelevancy, and cast so broad a connotation to "race" that one wonders whether any of the members of the Court's majority were looking at the facts before them.

It is perhaps difficult to see the odd place the Court found itself if account is not taken of the fact that the Court did not, and could not, find Constitutional fault with the trust itself. The oddity is stretched to incredulity when account is also given to the broad latitude normally afforded the United States Congress when it legislates on the affairs of Native Americans. Congress can authorize the limitation of the tribal franchise to blood members. Congress can even delegate to the States the task of administering programs for the benefit of tribes and their members. Never before had this been found to connote "racial" preferencing or exclusivity.

It is, of course, easy to confuse classifications based upon tribal membership or identity and classifications based upon race. Legally, if you are a "Native American", you belong to a racial minority. How, then, can we square the circle? Tribes have been allowed to exclude from their franchise persons who do not have a substantial link to the community by blood and ancestry. The Court explains the difference by citing the "political" expedience at the core of the tribe's discriminatory practice: it is a vestige of sovereign prerogative, which the United States assumed in the manner of a trust, that enables tribes to operate as distinct political entities; and a feature of this prerogative is the power to determine citizenship.

The majority has denied any relevance to the comparison. Hawaii has no coherent tribal government, and no recognizable tribal people, aside from the incidental "racial" profiling at issue here and so offensive to the 14th and 15th Amendments. Justice Stevens' biting dissent notes, "it is a painful irony indeed to conclude that native Hawaiians are not entitled to special benefits designed to restore a measure of native self-governance because they currently lack any vestigial native government -- a possibility of which history and the actions of this Nation have deprived them."

It is not clear what, precisely, the Court found offensive about the management of the Office of Hawaiian affairs. As Justice Stevens notes, "There would be nothing demeaning in a law that established a trust to manage Monticello and provided that the descendants of Thomas Jefferson should elect the trustees. Such a law would be equally benign, regardless of whether those descendants happened to be members of the same race."

Perhaps it is the role played by the State of Hawaii in its administration. Prior to Wednesday, the trust was embedded in the Constitution of the State, and formally an independent state agency. Perhaps it is the seeming absence of a distinct Hawaiian tribe or tribal government; something that the trust is intended to foster.

Whatever the cause of the Court's skepticism, nothing seems to explain the virulence with which it accuses the system of demeaning Native Hawaiians. Precisely how a classification system linked to ancestry necessarily demeans those belonging to the class is quite beyond me. This was not a system of general voting. The voting privilege was given to those for whom the outcome of voting matters. The only way in which this could be found problematic is if we believe the outcome should matter to more than those allowed to vote. To do this, we would have to take issue with the very foundations of the trust; a thing the majority insists that it is not doing.

Still, one wonders whether the Court concentrated too much attention on the Constitutional meaning of "race". Justice Kennedy writes:

"Ancestry can be a proxy for race. It is that proxy here. Even if the residents of Hawaii in 1778 had been of more diverse ethnic backgrounds and cultures, it is far from clear that a voting test favoring their descendants would not be a race-based qualification. But that is not this case. For centuries Hawaii was isolated from migration.... The inhabitants shared common physical characteristics, and by 1778 they had a common culture. Indeed, the drafters of the statutory definition in question emphasized the 'unique culture of the ancient Hawaiians' in explaining their work.... The provisions before us reflect the State's effort to preserve that commonality of people to the present day. In the interpretation of the Reconstruction era civil rights laws we have observed that 'racial discrimination' is that which singles out 'identifiable classes of persons ... solely because of their ancestry or ethnic characteristics.' ... The very object of the statutory definition in question and of its earlier congressional counterpart in the Hawaiian Homes Commission Act is to treat the early Hawaiians as a distinct people, commanding their own recognition and respect. The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose."

This is the core of the Court's analysis. Hawaii's law rests on a racial classification. Therefore, it is Constitutionally impermissible. But what is "it" that is impermissible? Is it so impermissible to benefit persons on the basis of their ethnic heritage, if that benefit is conferred to remedy a past injustice? Is it impermissible to organize a constituency among groups historically excluded from the political fold, particularly in the management of programs organized for their benefit?

The Court found race and cried foul. But what shall Hawaiians do in the aftermath?

On the outside, looking in,

David Robert Foss