[Steve,]

> As I understand it, here it is (OK meaning constitutionally 
> kosher):
> 
> 1. The preservation of Hawaiian culture is in the common  
> interest, and thus the use of fereral funds is OK
> 
> 2. The creation of a Trust for this purpose is OK.
> 
> 3. Requiring that trustees be members of the ethnic group 
> they are attempting to preserve is OK.
> 

Here we run afoul, if we accept what you next have to say. If the voting scheme offends the 15th Amendment, the constitution of the board of trustees must offend the 14th Amendment. The two Amendments use identical language. No account may be given of race in either context. The only reason the 15th Amendment has been treated as setting a higher bar is because it comes so much closer to effecting the democratic process. Because minorities are thought to be more vulnerable if excluded from the process, the Court has been more vigilant (and rightly so) in policing the field of voting rights. But if a voting scheme is found invalid, it is because the office for which voting occurred was a "public" office in the broadest sense of the term. To find that the board of trustees for OHA is a public office in this sense, you must reject the notion that the trust is validly limited to benefitting a discrete minority of citizens based on ancestry.

> 4. BUT requiring that the people who elect the Trustees 
> be of a certain ethnicity is a no-no. The body politic, 
> in this case, is the entire State of Hawaii (as it is the 
> State who implements the Trust), not merely the Native 
> Hawaiians, as defined. Therefore, the State's implementation  
> was wrong.
>

This is precisely the question. Who is the relevant body politic? Why must the body politic be defined as the State of Hawaii? Possession of the trust is defined as residing in native Hawaiians, not the State. The state merely administers the trust, in the same sense that the Federal Government holds title to reservation lands, but possession (and equitable ownership in the underlying fee) lies with the tribes. If Hawaii cannot pass control of the trust to its possessors, then the Federal government cannot pass control of reservation lands to the tribes.

> Another issue is what the Trust actually does - does it 
> pay for research libraries, museums, etc.? If so, then 
> everyone is a beneficiary, as with the Smithsonian; 
> even (and possibly especially) non-US citizens who wish 
> to study Hawaiian culture as told by Hawaiians. And, as the 
> rancher (I presume) pays his taxes, he does  therefore have 
> a pecuniary interest in decisions made by the Trust's board 
> of trustees.
> 

In a trivial sense, all trusts benefit all of us. The Carnegie Foundation gives funds to schools, libraries, museums, etc., without anyone suggesting that we are the intended beneficiaries. The distinction must be observed between intended and incidental beneficiaries if we are to have a coherent disagreement about the rights of beneficiaries generally. In this case, Mr. Rice is no more "interested" in the disposition of trust funds than I am in the formulation of tribal policy on reservation lands. Sure, we both have some pecuniary interest. But it does not look like such an interest is any different from my interest in whether the Seminole tribe may start manufacturing aircraft, or Delaware may once again lower the corporate tax rates on domestic corporations. Once again, I cannot square the constitutional propriety of tribal voting schemes with the constitutional impropriety of Hawaii's voting scheme. If the later is bad, so is the former. Indeed, if the latter is bad, then so is any voting in connection with the administration of any fund that incidentally effects the public interest, if the voting right is restricted according to notions of lineal decent.

> But if the purpose of the Trust is to pay for Native-
> only schools, hospitals, and housing complexes, I think 
> it is worthy to the extent that such things are needed, 
> but at the risk of creating reverse-segregation and 
> fostering hatred of non-Hawaiians as the evil nasty 
> destroyers of everything Hawaiian (which might actually 
> be a partial truth, but it's definitely not going to help 
> people function within our society).

How does the funding of Native schools, hospitals, and housing create "reverse-segregation" and foster hatred? I might agree with you if the only thing Hawaii did for the native Hawaiian population was create a trust of the sort at issue here. But Hawaii is a progressive state. There is no question that its public services cater to the population generally, without distinction as to ancestry or racial or ethnic identity. The trust does not take the place of these services, and there is no suggestion that native Hawaiians, in the absence of the trust, would be any worse off than anyone else in the population.

The trust is a unique and highly tailored benefit, thought necessary by the general population to remedy a terrible wrong. The Supreme Court has announced that remedial schemes of this sort cannot be controlled by the intended beneficiaries if the class of intended beneficiaries happen to fall within the same "race" (as determined by a majority of the Court).

I have a difficult time believing that the 15th Amendment was intended to proscribe this sort of program, or its mechanism of control. The 15th Amendment is concerned with the preservation of the democratic process. There is no suggestion here that the democratic process is at risk. All Hawaiians have equal rights to vote and participate in the full panoply of public discourse. Hawaiians together made a determination that something must be done to help restore a native Hawaiian "tribal" identity. To serve this end, control of funds that are assigned to the exclusive benefit of native peoples by Federal law, the State Constitution and the terms of Hawaii's entrance into the Union, was passed to the class of beneficiaries. The trust funds cannot be used for the benefit of the population generally. Yet, we now learn that control cannot be delegated to the class of intended beneficiaries, even if the majority retains the power to revoke the privilege. How does any of this involve a disruption of the political process? We are not told, beyond vague and bizarre generalization that any racial or pseudo-racial classification offends the dignity of the individual.

I agree that many racial or pseudo-racial classifications offend individual dignity. I just fail to see how this one does. I am persuaded that it is a racial classification in a very loose (and non-literal) sense. But it is a racial classification in the same sense that any classification based on ethnicity or blood decent is ipso facto a racial classification. It is not, in other words, a racial classification within the letter of the 15th Amendment. It therefore falls to the spirit of the Amendment to determine our course. And as I suggest above, I do not believe that the spirit of the Amendment commands that if they are to be elected at all, the trustees of OHA must be elected by the general population of Hawaii.

If the 15th Amendment requires that OHA's voting scheme be administered in a "race"-neutral manner, then so must voting for the tribal counsels of the Cherokee, Cheyenne, Hopi, Lakota, Navaho, Seminole and so on. But this would seem to undermine, rather than support, principles of localized democracy, and only add to the alienation of peoples historically barred from the political discourse. I suppose there is nothing analytically wrong with taking this step, but for the sake of consistency, I do not see how you can avoid taking it.

David