THE SENATE                           S.C.R. NO.            93
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                    SENATE  CONCURRENT
                        RESOLUTION

  URGING THE GOVERNOR TO APPOINT THE TRUSTEES TO THE OFFICE OF
    HAWAIIAN AFFAIRS TO SERVE OUT THEIR TERMS OF OFFICE IF THE
    RICE V. CAYETANO DECISION REQUIRES THEIR REMOVAL AS
    ELECTED OFFICIALS.


 1        WHEREAS, in 1978, the Constitutional Convention of the
 2   State of Hawaii recommended, and in 1980, the electorate
 3   ratified, a constitutional amendment that established the
 4   Office of Hawaiian Affairs (OHA); and
 5   
 6        WHEREAS, OHA was created to be the State agency
 7   responsible for the performance, development, and coordination
 8   of programs and activities relating to the betterment of
 9   conditions of two subclasses of Hawaiian citizenry, native
10   Hawaiians and Hawaiians; and
11   
12        WHEREAS, to administer the programs and assets of OHA,
13   Article XII, section 5, of the State Constitution required that
14   trustees be elected to govern OHA; and
15   
16        WHEREAS, understanding the unique trust relationship
17   established pursuant to the Hawaiian Homes Commission Act of
18   1920, as amended, and the Admission Act between state and
19   federal governments and the Hawaiian people, and in recognition
20   of Hawaiians' empathy to other Hawaiians, one of the
21   qualifications for being a trustee for OHA was that the trustee
22   be Hawaiian; and
23   
24        WHEREAS, the Hawaii State Constitution also limits the
25   right to vote for the trustees of OHA to Hawaiians; and
26   
27        WHEREAS, State law defines native Hawaiians as descendants
28   of not less than one-half part of the races inhabiting the
29   Hawaiian Islands before 1778, and Hawaiians, a larger class
30   that includes native Hawaiians, as descendants of the peoples
31   inhabiting the Hawaiian Islands in 1778; and
32   
33        WHEREAS, Harold "Freddy" Rice, a citizen without the
34   requisite ancestry to be a Hawaiian under State law, applied to
35   vote in OHA trustee elections; and

 
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 1   
 2        WHEREAS, when his application was denied, Mr. Rice sued
 3   the State, claiming that the voting exclusion was invalid under
 4   the Fourteenth and Fifteenth Amendments; and
 5   
 6        WHEREAS, the Federal District court granted the State
 7   summary judgement; and
 8   
 9        WHEREAS, the Ninth Circuit affirmed that Hawaiians, being
10   the group to whom trust obligations run and to whom OHA
11   trustees owe a duty of loyalty, should be the group to decide
12   who the trustees ought to be; and
13   
14        WHEREAS, upon appeal to the U.S. Supreme Court, on
15   February 23, 2000, the U.S. Supreme Court ruled in Rice v.
16   Cayetano that OHA's voting scheme was a violation of the
17   Fifteenth Amendment because OHA is a state agency; and
18   
19        WHEREAS, the U.S. Supreme Court's decision was narrowly
20   written and did not call into question the constitutionality of
21   OHA or the trust, but only the particular voting mechanism by
22   which the trustees are selected; and
23   
24        WHEREAS, the Attorney General has advised Governor
25   Cayetano that he may be obligated to remove eight of the nine
26   trustees because they were voted into office in an illegal
27   election; and
28   
29        WHEREAS, the Governor believes he has the authority to
30   fill the positions vacated by the U.S. Supreme Court ruling
31   through the appointment process; and
32   
33        WHEREAS, even if the Governor does have the authority to
34   remove the trustees, nothing precludes the Governor from
35   filling the vacancies with the existing elected trustees; and
36   
37        WHEREAS, in hearings on the issue before the House of
38   Representatives and the Senate, constituents, and particularly
39   Hawaiians, repeatedly voiced a desire to retain the current
40   trustees; and
41   
42        WHEREAS, for the continuity, stability, and integrity of

 
 
 
 
 
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                                  S.C.R. NO.            93
                                                        
                                                        


 1   OHA, which is beneficial to the trust, its beneficiaries, and
 2   the State as a whole, the Legislature believes that the current
 3   OHA trustees should fulfill their trust obligations for the
 4   remainder of the term until the State can establish a mechanism
 5   for compliance with the Fifteenth Amendment; now, therefore,
 6   
 7        BE IT RESOLVED by the Senate of the Twentieth Legislature
 8   of the State of Hawaii, Regular Session of 2000, the House of
 9   Representatives concurring, that the Governor is urged to
10   appoint the current OHA trustees to fill the remainder of the
11   term until a public election can be held in November, 2000; and
12   
13        BE IT FURTHER RESOLVED that certified copies of this
14   Concurrent Resolution be transmitted to the Governor of the
15   State of Hawaii, the Attorney General, and the Board of
16   Trustees of OHA.
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20                         OFFERED BY:  ____________________________