TO DWELL ON THE EARTH IN UNITY:
Rice
,
Arakaki
,
AND THE GROWTH OF
CITIZENSHIP AND VOTING RIGHTS IN
HAWAI`I
by PATRICK W. HANIFIN
1
God hath made of one blood all nations of men to dwell on the earth in unity.
Thus began the first
Constitution of the Kingdom of Hawai`i in 1840.
2
As reflected in these words, Hawai`i has a long tra-
dition of political inclusion: of including as citizens all people born on the `aina,
3
no matter where their
families came from; and of including as voters a growing proportion of those who dwell in Hawai`i.
When Hawai`i was an independent country, everyone born in Hawai`i (except children of foreign diplo-
mats) was a citizen.
4
The government of the Kingdom of Hawai`i actively encouraged immigration
and offered immigrants easy naturalization and full political rights. Race and ethnicity did not matter.
Current proposals to create a racially exclusive government or agency for ethnic Hawaiians
5
alone
contradict Hawai`is historical tradition. In 1978, in a departure from Hawai`is long tradition of inclu-
sion, a state agency, the Office of Hawaiian Affairs (OHA) was created with voting and office-holding
restricted to ethnic Hawaiians.
6
The United States Supreme Court, in
Rice v. Cayetano
,
7
and the federal
District Court, in
Arakaki v. State
,
8
recently drew Hawaii back to the Hawaiian tradition of inclusion, as
well as to the American constitutional principle of equal protection, by striking down that racial dis-
VOL. V NO. 13
THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
15
1
Patrick W. Hanifin received his bachelors degree in government from the University of Notre Dame in 1977; his law
degree from Harvard in 1980; and a Masters in Public Policy from Harvards John F. Kennedy School of Government in
1986. He is a partner in Im Hanifin Parsons, LLC.
2
Hawai`i Constitution of 1840, Preamble, in L
YDECKER
, R
OSTER OF
L
EGISLATURES OF
H
AWAI
I
, 1842-1918 (hereinafter
L
YDECKER
) at 8 (1918) (emphasis added). This provision was first enacted as the opening of the Declaration of Rights
of 1839, Hawai`is first bill of rights. It paraphrases Acts, 17:24-26, in the King James Version of the Bible.
3
I.e
. the land of Hawai`i. M.K. P
UKUI AND
S.H. E
LBERT
, H
AWAIIAN
D
ICTIONARY
, 11 (1986).
4
Citizen is used here in the broad sense of a member of a political community, owing allegiance to that community.
See
B
LACK
S
L
AW
D
ICTIONARY
237(7th ed., 1999). The word can also be used in a narrower sense in which it refers to a
member of a political community that has a republican form of government. In this narrower sense, it can be said that
republics have citizens, monarchies have subjects, and tribes have members. This article will refer to citizens of the
United States and the Republic of Hawaii and to subjects of the Kingdom of Hawaii and the United Kingdom.
Citizenship will be used in the broad sense signifying the status of a member of a political community.
5
The term ethnic Hawaiian is used to refer to any person who can trace his ancestry back to one or more persons who
inhabited Hawai`i in 1778, before the first Europeans arrived.
See
Haw. Rev. Stat. § 10-2, defining Hawaiian as any
descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the
Hawaiian Islands in 1778 and which peoples thereafter have continued to reside in Hawai`i. As discussed in part V
below, there are numerous competing proposals that would variously give ethnic Hawaiians exclusive control of all or part
of the government of Hawai`i, and all or part of the public land of Hawai`i.
6
Hawai`i State Constitution Art. XII, §§ 5, 6, enacted in 1978.
7
528 U.S. 495, 120 S.Ct. 1044, 145 L.Ed. 2d 1007 (2000).
8
Haw. No. CV-00-00514 HG-BMK (September 19, 2000). The author of this article was one of the attorneys repre-
senting the Plaintiffs in
Arakaki
.
crimination. Opponents of
Rice
have responded with proposals for racial separatism in the name of
recognizing or restoring a race-based Hawaiian nation.
9
However, a racially exclusive government
would not be a revival of the Kingdom of Hawai`i. On the contrary, the successors to the Kingdom, a
polity with a multi-racial citizen body, are the multi-racial State of Hawai`i and United States of
America.
This article surveys the historical development of the Hawaiian tradition of political inclusiveness
and draws some implications for the current debate concerning proposals to create a government exclu-
sively for ethnic Hawaiians. The rule that everyone born in Hawai`i is a citizen derives both from the
Anglo-American common law and from traditional Hawaiian custom. Voting rights expanded as the
Kingdom of Hawai`i developed from an absolute monarchy to a constitutional monarchy. However,
coups by contending factions sometimes succeeded in reducing the electorate to those likely to support
the regime in power. The period of coups ended and voting rights expanded when the United States
annexed Hawai`i and extended American citizenship and constitutional rights to the citizens of
Hawai`i. This article discusses the application of the federal constitutional right to vote to OHA in
Rice
v. Cayetano
, and
Arakaki v. State of Hawai`i
, which voided the first laws in the history of Hawai`i that
restricted voting and candidacy to a single ethnic group. The final section of this article analyzes pro-
posals to revive racially exclusive government by manufacturing an Indian tribe and argues that such
government would contradict both the Hawaiian tradition of inclusion and the American Constitution.
I. THE COMMON LAW RULE: CITIZENSHIP BY PLACE OF BIRTH
Hawai`i, when it was independent, followed the Anglo-American common law rule of
jus soli
:
everyone born in the country and subject to its jurisdiction is a citizen.
10
The common law rule traces back to the Norman Conquest of England in 1066. When William
of Normandy made himself William the Conqueror of England, he insisted that everyone in England
was his subject and owed loyalty directly to him as the King. To be the Kings loyal subject, a person
necessarily had to be the Kings legal subject. Hence, the rule developed at common law that almost
everyone born in England was a subject of the King.
11
The exceptions were children of foreign diplo-
mats and occupying armies.
12
Under the common law, a child born outside England was not an English
subject, even if his parents were English subjects.
13
However, Parliament passed statutes that made most
such children subjects.
14
The English common law rule lasted through the 19th century as Britain built an empire that cir-
cled the globe and that was largely populated by people who were not of English ancestry. Under
British law, anyone born in the Empire was a British subject and any British subject living in a parlia-
mentary constituency (
i.e.
in the British Isles) could vote if he met the voter requirements (being male,
satisfying property qualifications, if any, etc.). For instance, an Indian who moved from Calcutta to
London had the same rights as a British subject born in London.
15
16
HAWAII BAR JOURNAL
VOL. V NO. 13
9
E.g.
United States Senate Bill No. 2899, introduced in 106th Congress, 2d Session, in July 2000 and Senate Bills 81 and
746 in the 107th Congress;
see
U.S. Senate Committee Report 106-424. These bills are discussed in Part V below.
10
G
ORDON
, M
AILMAN
& Y
ALE
-L
OEHR
, I
MMIGRATION
L
AW AND
P
ROCEDURE
, § 92.04[3] (1999).
11
B
LACKSTONE
, C
OMMENTARIES ON
T
HE
L
AWS OF
E
NGLAND
, Bk. I, Chapter 10 *366-*374 (1765);
United States v. Wong Kim
Ark
, 169 U.S. 649, 655 (1898); I
MMIGRATION
L
AW AND
P
ROCEDURE
, § 92.03[a].
12
See Wong Kim Ark
, 169 U.S. at 655 (discussing English common law rule).
13
B
LACKSTONE
at *373.
14
See Wong Kim Ark
, 169 U.S. at 668-671(discussing English statutes); B
LACKSTONE
at *373 (discussing English statutes).
15
D
ICEY
, T
HE
L
AW OF THE
C
ONSTITUTION
, p. liv n. 43 (1982 reprint of 1914 edition).
The English common law rule was adopted in the United States as part of the American common
law, with royal subjects becoming republican citizens.
16
In 1856, in
Dred Scott v. Sanford
,
17
the
Supreme Court invented an exception to the common law: the Court barred blacks from citizenship,
even if they were born free in the United States. That decision was widely condemned in the North
and helped spark the Civil War. After the North won the Civil War, the Fourteenth Amendment over-
ruled
Dred Scott
by constitutionalizing the common law rule that, [a]ll persons born or naturalized in
the United States and subject to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside.
18
Applying the Fourteenth Amendment in light of the long history of common law rule of citizen-
ship by birth, the United States Supreme Court held in
United States v. Wong Kim Ark
19
that children born
in the United States are native-born American citizens, even if their parents are aliens who are not eli-
gible for citizenship. The Fourteenth Amendment affirms the ancient and fundamental rule of citi-
zenship by birth within the territory, in the allegiance and under the protection of the country, includ-
ing all children here born of resident aliens . . . of whatever race or color.
20
II. THE KINGDOM OF HAWAI`I
A. Hawaiian Custom
Before contact with the outside world, Hawaiian custom was in accord with the rule that all people
living in a kingdom were subjects of the king, no matter where they had come from. As in England, a
person became a subject either by being born on land that was within the kingdoms territory or by
pledging his loyalty to the king.
When, in 1778, Captain James Cook became the first European to reach Hawai`i, it was divided
into four kingdoms.
21
The aristocratic ali`i
22
and their retainers moved freely among these kingdoms, tak-
ing the best jobs they could find from whichever king or high-ranking ali`i that would hire them.
23
The
maka`ainana (the commoners) generally remained on the land where they were born but they, too, had
16
United States v. Wong Kim Ark
, 169 U.S. at 658; I
MMIGRATION
L
AW AND
P
ROCEDURE
, § 92.03[b]. The Constitution gives
Congress the power to enact uniform rules for naturalization. U.S. Constitution, Art. I, sec 8, clause 4.
17
60 U.S. 393, 19 How. 393 (1856).
18
U.S. Constitution, Fourteenth Amendment, § 1.
19
169 U.S. 649 (1898).
20
Id.
, 169 U.S. at 693.
21
1 R.S. K
UYKENDALL
, T
HE
H
AWAIIAN
K
INGDOM
(hereinafter H
AWAIIAN
K
INGDOM
) 30 (1938). The four contending
kingdoms were based on the islands of (1) Hawai`i; (2) Maui and surrounding islands; (3) Oahu; and (4) Kauai and Niihau.
Captain Cook was a British Royal Navy officer who led an expedition on orders of the British Admiralty to explore the
Pacific and to report back on what he found. He was killed in a brawl during his second visit to Hawai`i in 1779. His
crew returned to Britain and reported the existence of Hawai`i to the Admiralty and the world.
22
The ali`i were the traditional Hawaiian chiefs, i.e. the hereditary aristocracy. They claimed the right to govern the
commoners based on their alleged descent from the gods. 1 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 8; M. B
ECKWITH
,
H
AWAIIAN
M
YTHOLOGY
376-77 (1940). Some ali`i (including the family of Kamehameha the Great, founder of the uni-
fied Kingdom of Hawai`i) claimed descent from relatively recent immigrants from the magical land of Kahiki (a
mythologized Tahiti) who had introduced new religious beliefs and had taken power from earlier lines of ali`i. M. S
AHLINS
,
H
ISTORICAL
M
ETAPHORS AND
M
YTHICAL
R
EALTIES
9-12, 24 (usurpation . . . was the very principle of political legitima-
cy in the Hawaiian system) (1981); V. V
ALERI
, K
INGSHIP AND
S
ACRIFICE
: R
ITUAL AND
S
OCIETY IN
A
NCIENT
H
AWAII
, 8-
9, 143 (1985); B
ECKWITH
, H
AWAIIAN
M
YTHOLOGY
369-73; M. B
ECKWITH
, T
HE
K
UMULIPO
141 (1972).
23
M
ALO
, H
AWAIIAN
A
NTIQUITIES
58-59, 61, 65 (1951 reprint of 1898 ed.). This tradition was an ancient precedent for
the Kingdom of Hawai`is practice of advancing some immigrants to prominent political positions.
VOL. V NO. 13
THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
17
the right to move about in search of better economic conditions.
24
Maka`ainana literally means peo-
ple who attend the land.
25
The maka`ainana were generally kama`aina, i.e. persons who were born
in the area where they dwelled.
26
The king expected the people who tended the land that he governed, whether born there or immi-
grants, to be his loyal subjects and to follow the rules that he laid down. When a king extended his king-
dom by conquering an area from another king, the maka`ainana living on the conquered land became
subjects of the conqueror. King Kamehameha I, like William the Conqueror, was a feudal overlord who
demanded loyal obedience from all the subjects that he had conquered in his rise to unchallenged power
over Hawai`i, wherever they had been born.
27
He rewarded his loyal followers with grants of land pop-
ulated by peasants who paid rents and taxes. In return, his ali`i followers were obliged to support him
in his wars and pass on to him as much as he demanded of the profits of peasant labor.
28
Kamehameha also hired immigrant European and American advisors, such as John Young and
Isaac Davis, to help him conquer and govern the islands. Although there was as yet no written law of
citizenship, Kamehameha made his advisors prominent members of the political community. He
rewarded them with ali`i status and prominent government positions.
29
For instance, Kamehameha
made Young the governor of the island of Hawaii and made Oliver Holmes governor of Oahu.
30
B. The Common Law Rule of
Jus Soli
Adopted in Hawai`i
In the mid-nineteenth century, the king and subjects of the Kingdom of Hawai`i transformed the
feudal monarchy of Kamehameha I into a constitutional monarchy based on ideas of law and democ-
24
H
ANDY
& H
ANDY
, N
ATIVE
P
LANTERS IN
O
LD
H
AWAII
288 (1972); C
HINEN
, T
HE
G
REAT
M
AHELE
5-6 (1958) M
ACKENZIE
,
N
ATIVE
H
AWAIIAN
R
IGHTS
H
ANDBOOK
4 (1991).
25
P
UKUI AND
E
LBERT
, H
AWAIIAN
D
ICTIONARY
, 224.
26
Id.
at 124. Kamaaina literally means child of the land.
Id.
In common parlance, it is extended to refer to all long-
time residents of the land. Testimony of such long-time residents can be used to prove custom and usage of an area.
State
v. Hanapi
, 89 Haw. 177, 187 n. 12, 970 P.2d 485, 486 n. 12 (1998);
Application of Ashford
, 50 Haw. 314, 316, 440 P.2d 76,
79
rehg denied
, 50 Haw. 452, 440 P.2d 76 (1968);
In re Boundaries of Pulehunui
, 4 Haw. 239 (1879).
27
Kamehameha I, sometimes called Kamehameha the Great, founded the Kingdom of Hawai`i by conquest. He was
the cousin of the king of the Island of Hawai`i and led a successful revolt, making himself king of that island. Moving
quickly to acquire guns, western ships and advisors, he disrupted the balance of power among the four kingdoms and suc-
cessfully invaded the kingdoms of Maui and Oahu. Repeated threats of invasion persuaded the king of Kaua`i to
acknowledge Kamehameha as overlord of Kaua`i. 1 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 29-60. Kamehameha the
Great founded a dynasty and was succeeded by four kings of the same name: his sons Kamehameha II and Kamehameha
III; and his grandsons Kamehameha IV and Kamehameha V.
28
C
HINEN
, T
HE
G
REAT
M
AHELE
5-6 (1958); Principles Adopted by the Board of Commissioners to Quiet Land Titles, in
their Adjudication of Claims Presented to Them, Laws 1848, p. 81, reprinted in R.L.H. 1925, Vol. II, p. 2124 (describ-
ing feudal land tenure system and explaining that all tenants, whether native or foreign, owned obedience to the king); In
re Estate of His Majesty Kamehameha IV, 2 Haw. 715, 718-719 (1864) (describing feudal system). See generally M
ALO
,
H
AWAIIAN
A
NTIQUITIES
52-64, 187-204 (discussing the pre-contact system of government); 1 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 9-10, 269-70 (same). The pre-contact Hawaiian political economy cannot be distinguished from feudalism
on the ground that the maka`ainana were not serfs bound to the land,
compare
M. M
ACKENZIE
, N
ATIVE
H
AWAIIAN
R
IGHTS
H
ANDBOOK
at 4. Many medieval European peasants were not serfs either.
See
H.J. B
ERMAN
, L
AW AND
R
EVOLUTION
: T
HE
F
ORMATION OF THE
W
ESTERN
L
EGAL
T
RADITION
317 (1983) (a third to a half of the medieval peasants were not serfs).
To compare the pre-contact Hawaiian system with the wide variety of medieval European customs and legal systems that
fall under the label feudal,
see id
. at 295-332; M. B
LOCH
, 1 and 2 F
EUDAL
S
OCIETY
(1961); F.W. M
AITLAND
, T
HE
C
ONSTITUTIONAL
H
ISTORY OF
E
NGLAND
, 23-39, 141-64 (1963 reprint of 1908 ed.).
29
1 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 25. Young married an ali`i who was the niece of Kamehameha I; his son John
Young II, also known as Keoni Ana, became minister of the interior and premier of the Kingdom in the 1840s and his
granddaughter Emma became Queen as the wife of Kamehameha IV. 1 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 263; 2
K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 78, 83.
30
1 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 54.
18
HAWAII BAR JOURNAL
VOL. V NO. 13
racy inspired by England and America. With the cooperation of the king and his ali`i advisors, the new
court system was designed and managed by American lawyers such as John Ricord and William Lee,
who had been trained in the common law.
31
An early statute expressly authorized the courts to apply
common law rules,
32
and the judges, most of them trained in America and England, typically did so.
Like the courts of every common law jurisdiction, the courts of Hawai`i adapted the common law to
local conditions.
The common law rule that everyone born in a country and subject to its jurisdiction is a subject
accorded with the Hawaiian tradition and was readily adopted as part of the new Hawaiian legal sys-
tem. An early statute, I Statute Laws of Kamehameha III, § III, expressly enacted the common law
rule:
In 1850, H.W. Whitney, born in Hawaii of foreign parents, asked the Minister of the Interior, John
Young II, about his status. The question was referred to Asher B. Bates, legal adviser to the
Government, who replied that, not only the Hawaiian Statutes but the Law of Nations, grant to an
individual born under the Sovereignty of this Kingdom, an inalienable right, to all of the rights and
privileges of a subject.
36
In 1856, the Kingdoms Supreme Court decided
Naone v. Thurston
,
37
recognizing that persons born
in Hawai`i of foreign parents were Hawaiian subjects. The defendant Asa Thurston challenged a law
that required foreigners to pay $5 extra a year to educate their children in English language schools.
The court's statement of the facts shows that the junior Thurstons, born in Hawai`i, were subjects of
the Kingdom by birth.
38
This may have been the first equal protection case in Hawai`i's history.
Thurston lost for two reasons. First, there was no equal protection clause in the 1852 Constitution.
39
Second, the Supreme Court believed that the law advantaged, rather than disadvantaged Hawaiian-
born children of foreigners because it gave them a better education than children in the Hawaiian lan-
guage schools and a better style of education must . . . cost a better price.
40
The court quoted the leg-
islative preamble to the challenged statute, which explained that the reason for the special education was
31
1 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
, at 236-37, 241-45; Silverman,
Imposition of a Western Judicial System in the Hawaiian
Monarchy
, 16 T
HE
H
AWAIIAN
J.
OF
H
ISTORY
, 48, 56-61 (1982).
32
Third Act of Kamehameha III, An Act to Organize the Judiciary Department of the Hawaiian Islands, ch. 1, § IV
(September 7, 1847).
See Hawaii v. Mankichi
, 190 U.S. 197, 211 (1903) (noting that 1847 marked the beginning of the com-
mon law system in Hawai`i). The statute also authorized the courts to apply civil law principles.
33
Thurston v. Allen
, 8 Haw. 392, 398-99 (1892) (noting that in only about 9 of 900 reported cases did the courts of the
Kingdom depart from the Anglo-American common law rules).
34
Id.
at 398;
Branca v. Makuakane
, 13 Haw. 499, 505 (1901) (Hawai`i courts departed from English common law rules when
rules were based on conditions that did not apply to Hawai`i or were excessively technical).
See generally
, Paul Sullivan,
Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawai`i
, 20 U. H
AW
. L. R
EV
. 99 (1998); Damien P.
Horigan,
On the Reception of the Common Law in the Hawaiian Islands
, 3 H
AW
. B
AR
J. No. 13, 87 (1999).
35
I Statute Laws of Kamehameha III, p. 76, § III (1846).
36
J
ONES
, N
ATURALIZATION IN
H
AWAII
18 (1934) (citing Interior Department files from the Archives of Hawai`i).
37
1 Haw. 220 (1856).
38
Naone v. Thurston
, 1 Haw. at 220-221 (referring to subjects of foreign birth or parentage and citing I Statute Laws, p.
76).
39
Id.
at 221.
40
Id.
at 222.
All persons born within the jurisdiction of this kingdom, whether of alien foreigners, of nat-
uralized or of native parents, and all persons born abroad of a parent native of this kingdom,
and afterwards coming to reside in this kingdom, shall be deemed to owe native allegiance to
His Majesty. All such persons shall be amenable to the laws of this kingdom as native sub-
jects.
35
VOL. V NO. 13
THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
19
that children born in the Kingdom of foreign parents were "destined to have a great influence, for good
or evil, on the community."
41
In 1859, the Kingdoms statutes were codified and the provision of I Statute Laws of Kamehameha
III, § III, was dropped. However, the common law principle of
jus soli
remained.
42
Moreover, the 1859
Civil Code continued to provide that every naturalized subject would be deemed to all intents and pur-
poses a native of the Hawaiian Islands and entitled to all the rights, privileges and immunities of an
Hawaiian subject.
43
Thus, Hawaiian subjects were either native-born or naturalized.
44
In 1868, the Minister of the Interior rendered an official opinion that:
The effect of the repeal of the citizenship provision of I Statute Laws of Kamehameha III, § III,
was that if a Hawaiian subject permanently relocated out of Hawai`i and had a child in a foreign coun-
try, then that child was not a Hawaiian subject. Under the common law, a foreign-born child of a cit-
izen is not a citizen.
46
Although the common law can be altered by statute, if no statute makes a foreign
born child a citizen, then the child is not a citizen.
47
In
Wong Foong v. United States
, a child born in China
in 1894 of a naturalized Hawaiian subject claimed that he had inherited his fathers status and there-
fore had become a citizen of the United States when the Organic Act
48
converted Hawaiian citizens into
American citizens.
49
The Ninth Circuit rejected the argument because it could not find any applicable
Hawaiian law that varied the common law rule of
jus soli
.
50
The court interpreted the Minister of the
Interiors 1868 ruling to apply only if
both
of a childs parents were Hawaiian citizens temporarily liv-
ing abroad.
51
Thus, if a Hawaiian subject of ethnic Hawaiian ancestry moved to the United States,
married, and had a child in the United States after 1859, then that child and the childs descendants
would not have been Hawaiian subjects, even though they were ethnically Hawaiian. This illustrates
the basic point that a person could be a subject of the Kingdom only by being born in Hawaii or by
41
Id.
42
Wong Foong v. U.S.
, 69 F.2d 681, 682-683 (9th Cir. 1934).
43
1859 Civil Code § 432.
44
See United States v. Wong Kim Ark
, 169 U.S. at 664 (quoting Kents Commentaries on the common law defining natives
as all persons born within the jurisdiction).
45
Letter ruling from Minister of Interior F.W. Hutchinson, in response to inquiry from H.H. Parker, regarding his citi-
zenship status. H
AWAIIAN
G
AZETTE
(official publication of the Government of the Kingdom) Vol. IV, No. 1, January 22,
1868, p. 2, col. 2; P
ACIFIC
C
OMMERCIAL
A
DVERTISER
, January 25, 1868, p. 2, col. 4, quoted in
Wong Foong v. U.S.
, 69 F.2d
at 682. In
Cummings v. Isenberg
, 89 F.2d 489 (D.C. Cir. 1937), the court expressed doubt about the official status of Minister
Hutchinsons letter because plaintiff cited it to the court only by citing Wong Foong which itself only cited the P
ACIFIC
C
OMMERCIAL
A
DVERTISER
account. However, the Ministers ruling was published in the H
AWAIIAN
G
AZETTE
, which was
the official publication announcing governmental actions.
See
H
AWAIIAN
G
AZETTE
, January 25, 1868, p. 2, col. 1 (setting
out its status as official government publication).
46
Wong Kim Ark
, 169 U.S. at 670;
Wong Foong
, 69 F.2d 681.
47
Wong Kim Ark
at 668-671.
48
Act of April 30, 1900, 31 Stat. 141.
See
discussion of Organic Act in Part IV below.
49
Wong Foong v. United States
, 69 F.2d at 682.
50
Id.
51
Id.
, 69 F.2d at 683. In
Cummings v. Isenberg
, 89 F. 2d at 493-96, the District of Columbia Circuit Court declined to decide
whether a person born in Germany in 1880 whose father was a naturalized Hawaiian subject had acquired his fathers
status as a Hawaiian subject and so had become an American citizen by virtue of the Organic Act. The court found that,
even if he had been an American citizen, he gave up that citizenship by his own actions.
In the judgment of His Majestys government no one acquires citizenship in this Kingdom
unless he is born here, or born abroad of Hawaiian parents (either native or naturalized) dur-
ing their temporary absence from the Kingdom, or unless having been the subject of anoth-
er power, he becomes the subject of this Kingdom by taking the oath of allegiance.
45
20
HAWAII BAR JOURNAL
VOL. V NO. 13
being naturalized. Except for the rare case of the child born while its parents were temporarily outside
the Kingdom, ancestry was irrelevant to citizenship.
52
In 1892, the common law of England as ascertained by English and American decisions was
declared to be the common law of Hawai`i except where a different rule had been fixed by Hawaiian
judicial precedent, or established by Hawaiian usage.
53
This included the common law rule of
jus soli
.
54
The English, American and Hawaiian precedents, as well as Hawaiian usage, all coincided on a rule of
citizenship by place of birth. By 1893, about 1 out of 5 native-born subjects was not ethnic Hawaiian
and the proportion was rapidly increasing.
55
C. Citizenship Rights for Immigrants to the Kingdom
In its last half century, the government of the Kingdom actively sought immigrants from around
the world, to replenish a population sadly depleted by disease,
56
to recruit persons with modern skills,
and to provide labor for the growing sugar industry. As part of this effort, the Kingdoms statutes pro-
vided for easy naturalization of immigrants and offered political rights even to immigrants who did not
wish to give up their citizenship in the countries from which they had come.
57
The Kingdoms first written law code, published in Hawaiian in 1841 and in English translation in
1842, provided for naturalization of foreigners who married Hawaiian subjects.
58
In 1846, the
Kingdoms Civil Code provided for naturalization of any alien immigrant who applied after living in
52
By contrast, the United States did have statutes providing that the child born abroad of an American citizen was an
American citizen if the childs American father had resided in the United States before the child was born. Act of March
26, 1790, 1 Stat. 103, 104; Act of January 29, 1795, § 3, 1 Stat. 414, 415; Act of April 14, 1802, § 4, 2 Stat. 153, 155;
Act of Feb. 10, 1855, § 1, 10 Stat. 604;
Montana v. Kennedy
, 366 U.S. 308, 311-12 (1961) (before 1934, a child could inher-
it American citizenship only through his father, not his mother);
Weedin v. Chin Bow
, 274 U.S. 657 (1927) (father must have
resided in U.S. before child born). Thus, a person such as Sanford B. Dole (legislator and judge under the Kingdom and
President of the Republic) who was born in Hawai`i of a male American citizen who had immigrated to Hawaii was both
a citizen of Hawai`i and of the United States. American citizenship could pass down to a second generation born in
Hawai`i if (1) the grandchilds father had dual American and Hawai`i citizenship by virtue of being born in Hawai`i of
an American father; (2) the grandchilds father had resided in America for some period of time, e.g. while attending col-
lege; and (3) the grandchilds father had not formally renounced his American citizenship before his child was born. Since
1934, American law has provided that a child born abroad of an American citizen is an American citizen, without regard
to the gender of the American parent. Act of May 24, 1934, § 1, 48 Stat. 797.
53
L. 1892, c. 57, § 5 (now codified at Haw. Rev. Stat. § 1-1).
54
Wong Foong v. United States
, 69 F.2d at 682.
55
The 1890 census reported 40,622 ethnic Hawaiians and 7,495 native-born subjects who where not ethnic Hawaiians.
Assuming that all of the ethnic Hawaiians were born in Hawai`i, native-born subjects who were not ethnic Hawaiians
comprised about 15.58% of all native-born subjects. The next census, in 1896, reported 39,504 ethnic Hawaiians and
13,733 native-born subjects who where not ethnic Hawaiians. The percentage of native-born subjects who were not eth-
nic Hawaiians had increased to about 25.8% of the native born population in just six years. It was probably about 20%
in 1893, midway between the 1890 and 1896 censuses. Statistics from T
HRUM
S
1900 H
AWAIIAN
A
NNUAL
39 (1900).
56
See
2 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
177-195 (1953); 3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
116-85 (1967). The
ethnic Hawaiian population fell throughout the period of the Kingdom, due to a number of causes, including exposure
to diseases introduced from around the world, but has been rising ever since the United States annexed Hawai`i and intro-
duced modern medicine and public health measures and as ethnic Hawaiians have intermarried with members of other
ethnic groups.
See
E.C. N
ORDYKE
, T
HE
P
EOPLING OF
H
AWAI
I
, 174, 178, 190-93 (2d ed. 1989); R.C. S
CHMITT
,
H
ISTORICAL
S
TATISTICS OF
H
AWAI
`
I
9, 25-27 (1977).
57
See
J
ONES
, N
ATURALIZATION IN
H
AWAI
I
(summarizing the naturalization statutes of the Kingdom).
58
Hawaiian Laws 1841-1842, Chapter X, § IX at 47 (1995 reprint of 1842 translation by William L. Richards, a natu-
ralized subject and a member of Kamehameha IIIs cabinet).
VOL. V NO. 13
THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
21
Hawai`i for at least one year.
59
The Civil Code created a Bureau of Naturalization within the Ministry
of Interior.
60
The statute went on to provide that aliens who did not want to give up their citizenship in the coun-
try they came from could become denizens, entitled to full legal rights of Hawaiian subjects.
61
The
status of denizen, like the rule that aliens can be naturalized, goes back to the English common law. The
King of England, by exercise of his royal authority, could make an alien a denizen of England, hav-
ing most of the rights of an English subject.
62
In the Kingdom of Hawai`i, denizen status amounted to
dual citizenship: a denizen had the rights of a subject of Hawai`i without ceasing to be a citizen of his
native country.
63
Denizens had the right to vote and hold public office.
64
Similar provisions for natu-
ralization and denization can be found in the subsequent Civil Codes of the Kingdom.
65
Between 1844 and 1894, using these provisions, 3,239 foreigners became naturalized.
66
The
Kingdom government granted another 143 foreigners letters of denization.
67
Naturalized subjects and
denizens held high public office, including cabinet posts, legislative seats, and judgeships.
68
D. Voting Rights in Kingdom Elections
Under the constitutions of the Hawaiian Kingdom, being a subject was neither necessary nor suf-
ficient to be a voter. Denizens could vote if they met applicable qualifications of gender, literacy and
wealth.
69
Women could not vote, even if they were Hawaiian subjects.
70
Kamehameha III and the leading ali`i, with the help of their American and English advisors, trans-
formed Hawai`i into a constitutional monarchy, loosely modeled on Great Britain, when they adopted
59
I Statute Laws of Kamehameha III, § X at 78.
60
Id.
, at Chapter V, § 1.
61
Id.
, § Sec. XIV (letters patent of denization conferring upon such alien, without abjuration of native allegiance, all of
the rights, privileges, and immunities of a native). At least after 1868, and perhaps before, an American citizen who took
an oath to become a naturalized citizen of a foreign country thereby gave us his American citizenship. Act of July 27,
1868, ch. 249, 15 Stat. 223; 14 Op. Atty Gen. 295, 296 (1873).
62
According to Blackstone, a denizen is an alien born, but who has obtained ex donatione regis letters patent to make
him an English subject: a high and incommunicable branch of the royal prerogative. B
LACKSTONE
at *374. By con-
trast, naturalization of aliens was accomplished by acts of Parliament.
Id
. The same distinction continued into the nine-
teenth century, even after Parliament enacted a general naturalization act delegating to the Secretary of State the power
to naturalize immigrants. F. W. M
AITLAND
, T
HE
C
ONSTITUTIONAL
H
ISTORY OF
E
NGLAND
, 426-28 (1963 reprint of 1908
edition of lectures first given in 1887-88).
63
3 G. H. H
ACKWORTH
, D
IGEST OF
I
NTERNATIONAL
L
AW
, 126-127 (1942).
64
Aliens and Denizens, 5 Haw. 167 (1884).
65
1859 Civil Code, §§ 428-434; 1884 Civil Code, §§ 428-434.
66
I
NDEX TO THE
N
ATURALIZATION
R
ECORD
B
OOKS FOR
I
NDIVIDUALS
N
ATURALIZED BY THE
M
INISTER OF THE
I
NTERIOR
OF THE
H
AWAIIAN
I
SLANDS
, 1844-1894 (no date) (available in Hawai`i State Archives). This total included 1105
Americans; 763 Chinese; 596 British subjects; 242 Portuguese; 230 Germans; 47 French citizens; 68 other Europeans; 136
from Pacific Islands; 27 from South America; and 25 others. Id. Three Japanese were naturalized. Historical note
appended to Organic Act, § 4 in 15 M
ICHIE
S
H
AWAI
`
I
R
EVISED
S
TATUTES
A
NNOTATED
at 30.
67
H. A
RAI
, I
NDICES TO
C
ERTIFICATES OF
N
ATIONALITY
1846-1854, D
ENIZATION
1846-1898, O
ATHS OF
L
OYALTY TO THE
R
EPUBLIC FROM
O
AHU
1894,
AND
C
ERTIFICATES OF SPECIAL RIGHTS OF CITIZENSHIP
1896-1898 (1991). This index is on
file in Hawai`i State Archives (Ref. 351.857 H3). It is unpaginated and the number given in the text is derived from a
hand count of the indexed names.
68
See list of cabinet members in 1891 T
HRUM
S
H
AWAIIAN
A
NNUAL
92-95; G
AVIN
D
AWS
, S
HOAL OF
T
IME
, 214 (1968) (26
of 37 cabinet appointees between 1874 and 1887 were not ethnic Hawaiians); 3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at
188, 248 (discussing numbers of cabinet members and legislators who were not ethnic Hawaiians);
see
L
YDECKER
(listing
members of each legislature); see the list of judges in the opening pages of each of the first 10 volumes of the Hawaii
Reports.
69
Aliens & Denizens, 5 Haw. 167 (1884); 1852 Const. Art. 78.
70
Id.; 1852 Const. Art. 78; 1864 Const. Art. 62.
22
HAWAII BAR JOURNAL
VOL. V NO. 13
the 1839 Declaration of Rights the Hawaiian Magna Charta
71
and the Constitution of 1840.
72
The Declaration of Rights, which was incorporated into the 1840 Constitution declared:
The adoption of the 1840 Constitution, incorporating the Declaration of Rights, marked Hawai`is
transition to constitutional monarchy and the adoption of the ancient common law principle that, The
King must not be under man but under God and under the law because law makes the King.
74
The
Hawai`i Supreme Court later explained that Kamehameha III originally possessed, in his own person,
all the attributes of absolute sovereignty. Of his own free will he granted the Constitution of 1840, as
a boon to his country and people, establishing his Government upon a declared plan.
75
That consti-
tution introduced the innovation of representatives chosen by the people.
76
This for the first time gave
the common people a share in the government actual political power.
77
A subsequent statute defined
the procedure of choosing the representatives by a petition system.
78
The 1852 Constitution placed elections on a more formal basis.
79
Advancing ahead of Britain,
Hawai`i adopted universal manhood suffrage: Every male subject . . . whether native or naturalized,
and every denizen of the Kingdom, who shall have paid his taxes, who shall have attained the full age
of twenty years, and who shall have resided in the Kingdom for one year . . . shall be entitled to one
vote.
80
71
1 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 160.
72
Foreign contacts in general, and especially the work of the American missionaries over a period of twenty years led to
the development of liberal ideas, if not an actual liberal movement, among the Hawaiian people; and this was viewed
rather sympathetically by the Kings and several of the influential chiefs. K
UYKENDALL
, C
ONSTITUTIONS OF THE
H
AWAIIAN
K
INGDOM
, (hereinafter, C
ONSTITUTIONS
) Hawaiian Historical Society Papers, No. 21 (1940) at 7. See W.D.
Alexander, A Sketch of the Constitutional History of the Hawaiian Kingdom, 1894 T
HRUM
S
H
AWAIIAN
A
NNUAL
46-49
(Declaration of Rights and Constitution were originally composed in Hawaiian by Hawaiians and show influence of Bible
and American Declaration of Independence).
73
Constitution of 1840, Declaration of Rights Both of the People and Chiefs in L
YDECKER
at 8.
74
2 H
ENRY
D
E
B
RACTON
, O
N THE
L
AWS AND
C
USTOMS OF
E
NGLAND
, 33 (S. Thorne ed. 1968), which can be found on
the Internet at bracton.law.cornell.edu/bracton/common/index.html (visited October 2, 2001).
75
Rex v. Booth
, 2 Haw. 616, 630 (1863).
76
K
UYKENDALL
, C
ONSTITUTIONS
at 14. Constitution of 1840, Respecting the Representative Body, L
YDECKER
at 12.
77
1 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 167.
78
Laws of the Hawaiian Islands (1842), Chapter II, Of the Representative Body. The procedure was more like a peti-
tion drive than an election. Whosoever pleases could nominate a candidate by writing a letter addressed to the King
and circulating it for signature in the district. The nominees who got the most signatures on their nominating letters were
elected. No qualifications were specified as to who could sign the nominating letters. The statute provided that there
would be seven representatives (two each from Hawai`i, Maui and adjacent islands, and Oahu, and one from Kauai. Id.
By contrast, there were fourteen members of the House of Nobles, each named in the Constitution of 1840 (House of
Nobles).
79
In accordance with the 1840 Constitutions provision for constitutional amendment (entitled Of Changes in this
Constitution, L
YDECKER
at 15), the 1852 Constitution was adopted by agreement of the King and both houses of the
Legislature. 1 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 267.
80
Constitution of 1852, Art. 78, in L
YDECKER
at 44.
VOL. V NO. 13
THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
23
God hath made of one blood all nations of men to dwell on the earth in unity and blessed-
ness. God has also bestowed certain rights alike on all men and all chiefs, and all people of
all lands.
. . .
God has also established government, and rule, for the purpose of peace; but in making laws
for the nation, it is by no means proper to enact laws for the protection of the rulers only,
without also providing protection for their subjects.
73
In 1864, Kamehameha IV died without naming an heir.
81
The 1852 Constitution provided that
the Legislature had the power and right to elect his successor.
82
However, without waiting for an elec-
tion, Kamehameha IVs brother Lot seized the throne and took the title of Kamehameha V.
83
He
refused to take the required oath to the Constitution and did not convene the Legislature.
84
He called
a constitutional convention to consider his proposals to amend the Constitution of 1852.
85
When the
constitutional convention met, he instead proposed replacing the Constitution of 1852 with a new con-
stitution that would impose a property qualification to disenfranchise poorer voters, most of them eth-
nic Hawaiian.
86
In Kamehameha Vs opinion, universal manhood suffrage was altogether beyond the
political capacity of the Hawaiian people in the state of development which they have attained.
87
Kamehameha V had the support of the upper house of the legislature (the Nobles who were appoint-
ed by the King) and other wealthy residents; but the elected members of the constitutional convention,
disagreeing with his opinion of their constituents political capacity, rejected his proposal to disenfran-
chise the poor.
88
Kamehameha V, proclaiming that voting is not a right belonging to the people,
launched a bloodless coup d`etat, dissolved the convention, and abrogated the 1852 Constitution.
89
He
imposed a new constitution that substantially increased the power of the monarch.
90
It included the
property qualification for voting that the elected convention had rejected.
91
Depriving poorer citizens
81
2 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 124.
82
Id
. Constitution of 1852, Art. 25, in L
YDECKER
, at 38.
83
2 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 124-125.
84
Id
. at 125; K
UYKENDALL
, C
ONSTITUTIONS
at 27. Constitution of 1852, Art. 94 (King to swear to govern in conformi-
ty with the Constitution and laws), in L
YDECKER
at 46. Alexander, A Sketch of the Constitutional History of the Hawaiian
Kingdom, 1894 T
HRUM
S
H
AWAIIAN
A
NNUAL
at 53.
85
2 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 128-29; K
UYKENDALL
, C
ONSTITUTIONS
at 32.
86
2 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 130-31.
87
Id. at 127, quoting Cabinet Council Minute Book, March 3, 1864.
88
2 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 131; K
UYKENDALL
, C
ONSTITUTIONS
at 35, 37.
89
2 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 131-32. K
UYKENDALL
, C
ONSTITUTIONS
at 35-36. The Latin Americans call
this kind of coup an autogolpe a coup detat by the head of government to overthrow constitutional limits on his own
power, as President Alberto Fujimori did in Peru.
90
2 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 133-34 (by his coup detat, the king had accomplished his purpose to make
the influence of the Crown pervade every function of the government, quoting Kamehameha V); K
UYKENDALL
,
C
ONSTITUTIONS
at 39.
91
Constitution of 1864, Art. 62, in L
YDECKER
at 95. Voters had to have paid their taxes, and had to hold Real Property
in the Kingdom to the value over and above all incumbrances of One Hundred and Fifty Dollars--or of a Lease-hold
property on which the rent is Twenty-Five Dollars per yearor of an income of not less than Seventy-Five Dollars per
year, derived from any property or some lawful employment. Article 61 imposed a new property qualification on repre-
sentatives: a man had to own real estate of an unencumbered value of at least $500 or have an annual income of at least
$250. K
UYKENDALL
, C
ONSTITUTIONS
at 39-40. Measured by buying power and income of the time, these were sub-
stantial amounts. People who still lived by traditional Hawaiian subsistence agriculture had little or no cash income. A
worker on a sugar plantation (the chief source of cash wages for ethnic Hawaiians at that time) made about $7-$10 per
month. G.W. Willfong, Sugar Plantations in the Early Days in the Hawaiian Islands, 1 P
LANTER
S
M
ONTHLY
226, 228
(1882) (giving statistics from 1863). Land prices in the 1850s were in the range of 25 cents to $1.50 an acre. T. M
ORGAN
,
H
AWAI
I
: A C
ENTURY OF
E
CONOMIC
C
HANGE
, at 133 n.38 (1948). In the 1860s the Government sold thousands of acres
at average prices that generally fell below $1 per acre. In 1864 it sold 92,715 acres at an average price of 16 cents per
acre. L
EGISLATICE
R
EFERENCE
B
UREAU
, P
UBLIC
L
AND
P
OLICY IN
H
AWAI
`
I
: A H
ISTORICAL
A
NALYSIS
186-87 (1969) (sum-
marizing government land sales 1846-1893). Thus, $150 worth of land in 1864 would have been a hundred acres or more,
far more than needed for subsistence and family farming. Given that most of the voters before the 1864 coup were eth-
nic Hawaiians, and that most commoners who were employed in jobs that paid cash income worked in low-wage planta-
tion jobs, it is highly likely that most of the voters disenfranchised by Kamehameha Vs property qualification were eth-
nic Hawaiians. The Constitution of 1864, Art. 62, also included a literacy requirement for voters born after 1840.
24
HAWAII BAR JOURNAL
VOL. V NO. 13
of the right to vote was understandably unpopular and, in 1874, after Kamehameha V died, that prop-
erty qualification was removed by constitutional amendment.
92
The 1864 Constitution lasted until 1887 when another coup imposed another Constitution.
93
By
1887 the coalition of ali`i and wealthy planters who had supported Kamehameha V in the 1864 coup
had broken down over disputes about government spending and the exercise of royal powers.
94
The
leaders of the 1887 coup, the self-proclaimed Reform Party, were wealthy, mostly white subjects and
denizens who accused King Kalakaua and his prime minister, Walter Murray Gibson, of corruption.
95
They wanted to reduce the Kings powers as defined in the 1864 Constitution.
96
After threatening to
overthrow the monarchy, they settled for driving Gibson out of the country and forcing Kalakaua to sign
a new constitution that drastically reduced the monarchs powers.
97
The leaders of the coup designed the provisions of the 1887 Constitution to reshape the electorate
to maximize the chances of the Reform Party winning elections and to increase the power of the
wealthier members of the community at the expense of the King.
98
Until 1887, the King had appoint-
ed the upper half of the Legislature, the Nobles.
99
The 1887 Constitution broadened voting rights by
making the Nobles elected officials for the first time, but there was a stiff property qualification for vot-
ing for Nobles.
100
As in the amended version of the 1864 Constitution, there was no property qualifi-
cation for voting for representatives under the 1887 Constitution,
101
but there were literacy require-
ments.
102
Any male resident who met the voting qualifications could vote.
103
Broadening the electorate
for representatives to include all male residents would have created a new electoral majority: recent
immigrants from Japan and China, most of them field workers in the sugar plantations.
104
However, because there was no reason to think that these immigrants would support the Reform
Party, the 1887 Constitution, for the first time in the history of Hawai`i, imposed a racial qualification
on voting: persons of Asian ancestry were denied the right to vote, even if they had been able to vote
92
2 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 134; 3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 192; K
UYKENDALL
,
C
ONSTITUTIONS
at 36, 41-43. After Kamehameha V died in 1872 without appointing an heir, the legislature elected King
Lunalilo, who had won a non-binding popular election. Lunalilo died in 1874 and the legislature elected King Kalakaua
without holding a popular election.
93
See
3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 344-372.
94
3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 246-304, 344-356.
95
Id
. at 344-356; T.M. Spaulding, Cabinet Government in Hawai`i 1887-1893 at 4-5, H
AWAI
`
I
U
NIVERSITY
O
CCASIONAL
P
APERS
N
O
. 2 (1924); S
ANFORD
B
ALLARD
D
OLE
, M
EMOIRS OF THE
H
AWAIIAN
R
EVOLUTION
45-55 (1936). Gibson was a
naturalized Hawaiian subject who had previously been a British subject and an American citizen.
See
J. M
ICHENER AND
A. G
ROVE
D
AY
, R
ASCALS IN
P
ARADISE
112-46 (1957).
96
3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 348-49; K
UYKENDALL
, C
ONSTITUTIONS
at 46.
97
3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 365-372. W
ILLIAM
A
DAM
R
USS
, J
R
., T
HE
H
AWAIIAN
R
EVOLUTION
at 19 (1992
reprint, first published 1959); DOLE, M
EMOIRS OF THE
H
AWAIIAN
R
EVOLUTION
at 49-58
58.
The imposition of this constitution by coup detat led to its nickname, the Bayonet Constitution.
Id.
at 370.
98
R
USS
, H
AWAIIAN
R
EVOLUTION
at 20-21.
99
1852 Const. Art. 72; 1864 Const. Art. 57.
100
1887 Const. Art. 59. To vote for Nobles a voter had to own and be possessed, in his own right, of taxable property
in this country of the value of not less than three thousand dollars over and above all encumbrances, or shall have actu-
ally received an income of not less than six hundred dollars during the year.
Id
. No voter lost the right to vote as a result
of the property qualification because no one had ever had the right to vote for Nobles. Art. 63 of the 1887 Constitution
empowered the Legislature to increase the property qualifications and add a qualification for voting for representatives.
The Legislature never exercised its power under this article.
101
Id.
Art. 62.
102
1887 Const. Arts 59, 62 (literacy in Hawaiian, English or a European language); 1864 Const. Art. 62 (literacy, no spec-
ification of the language).
103
1887 Const. Arts. 59, 62 in L
YDECKER
at 166-168.
104
According to the 1890 Census, Chinese and Japanese accounted for 51.8% of all males of voting age but none of the
registered voters. R. C. Schmitt,
Voter Participation Rates in Hawai`i Before 1900
, 5 T
HE
H
AWAIIAN
J.
OF
H
ISTORY
50, 56
(1971).
VOL. V NO. 13
THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
25
under the prior constitutions.
105
In
Ahlo v. Smith
,
106
naturalized citizens of Chinese ancestry who had
voted before 1887 challenged this provision on equal protection grounds. They lost because the Hawai`i
Supreme Court said that it could not do anything about a qualification written into the Constitution
itself.
The number of Hawaiian subjects who could claim descent from pre-contact inhabitants of
Hawai`i continued to decline throughout the history of the Kingdom while the number of immigrants
grew. By 1893, ethnic Hawaiians were a minority of about 40% of the population.
107
Since almost all
of the Asian immigrants were adults, the ethnic Hawaiian portion of the voting age population was
even lower.
108
At the end of the Kingdom, about three out of four ethnic Hawaiians could not vote at
all because of the gender, literacy, property, and age requirements.
109
However, because of the racial
disenfranchisement of Asians, ethnic Hawaiians still amounted to about two-thirds of the electorate for
representatives and about one-third of the electorate for Nobles.
110
Had the Kingdom endured another generation, most of its adult citizens would have been the
native-born children of Asian immigrants. It is hard to imagine that they would have put up with being
disenfranchised on racial grounds. It is likely that they would have become either voters or revolution-
aries. Thus, if an independent Kingdom had lasted into the mid-twentieth century, it is very likely that
most of its voters would not have been ethnic Hawaiians.
However, the Kingdom did not last into the twentieth century; conflict within the ruling oligarchy
ended it in 1893. The 1887 Constitution was a rush job
111
that failed to resolve the conflict. Despite the
Reform Partys efforts to change the voting rules to ensure itself a majority, no party could secure a sta-
ble majority in the legislature.
112
The Kings powers were reduced but he could still appoint the cabi-
net
113
and veto legislation.
114
Abrogating and imposing constitutions by coup detat discouraged respect
for constitutional law. All factions were increasingly willing to use illegal and violent means to change
the fundamental structure of the government.
115
105
1887 Const. Arts. 59, 62.
106
8 Haw 420 (1892).
107
See
S
CHMITT
, H
ISTORICAL
S
TATISTICS OF
H
AWAI
`
I
74 (1977) (reporting statistics from 1890 census showing ethnic
Hawaiians and part-Hawaiians were 45% of the population and statistics from 1896 census showing ethnic Hawaiians
and part-Hawaiians were 36% of the population).
108
See
R. C. Schmitt,
Voter Participation Rates in Hawai`i Before 1900
, 5 T
HE
H
AWAIIAN
J.
OF
H
ISTORY
at 56.
109
See
1890 census statistics reported in T
HRUM
S
H
AWAIIAN
A
NNUAL FOR
1892 p. 16, showing that 23.5% of all ethnic
Hawaiians were registered voters in 1890;
see generally
, Hanifin,
Hawaiian Reparations: Nothing Lost, Nothing Owed
, 17 H
AW
.
B
AR
J. No. 2, p. 107, 118-21(1982) (discussing limitations on voting rights under 1887 Constitution).
110
3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 453. The rest of the voters were male residents of European or American
ancestry.
111
The Bayonet Constitution was drafted in five days to present Kalakaua with an offer he could not refuse; its framers
did not have time to deliberate over the details. 3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 367; K
UYKENDALL
,
C
ONSTITUTIONS
at 45-46; D
OLE
, M
EMOIRS OF THE
H
AWAIIAN
R
EVOLUTION
at 56-57. As Talleyrand is reputed to have
warned Napoleon, You can do anything with bayonets except sit on them.
112
3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 514-20.
113
1887 Constitution, Art. 41.
114
1887 Constitution, Art. 31;
Everett v. Baker
, 7 Haw. 229 (1887).
115
See, e.g.
, 3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 424-30 (Robert Wilcoxs 1889 coup attempt); 509, 523-25, 528 (eth-
nic Hawaiians Wilcox and J.E. Bush calling for overthrow of monarchy and institution of republic); 533-41 (Annexation
Club working for annexation of Hawai`i to U.S.); 582 (Queens attempt to overthrow 1887 Constitution); R
USS
, H
AWAIIAN
R
EVOLUTION
at 92 (Wilcoxs 1892 coup attempt), 66-67 (Queens attempt to overthrow 1887 Constitution).
26
HAWAII BAR JOURNAL
VOL. V NO. 13
Kalakauas sister Liliuokalani succeeded him on the throne in 1891.
116
In January 1893, she precip-
itated the long-brewing final crisis of the Kingdom by announcing her intent to impose a new constitu-
tion by royal fiat.
117
She denied the legitimacy of the 1887 Constitution and asserted a royal power to
abrogate and grant constitutions, citing the precedent of Kamehameha V.
118
Her Constitution would
have gone back to Kamehameha Vs model, greatly increasing her power at the expense of all others in
the political system: she would have had an absolute veto, the power to appoint most of the legislators,
and to hire and fire the cabinet at will. She would have disenfranchised many voters by re-imposing the
property qualification on voting for representatives and by denying denizens and other non-citizen resi-
dents the right to vote.
119
More fundamentally, a monarch who can alter the Constitution as she thinks
best when she thinks best is an absolute monarch operating above the highest law of the land.
120
Liliuokalanis own cabinet refused to support her in overthrowing the 1887 Constitution.
121
She
announced that she would delay the imposition of her new constitution.
122
Her opponents seized the
opportunity to launch their own coup. They overthrew her, bringing the Kingdom of Hawai`i to an end.
It is not the purpose of this article to defend the overthrow of the Monarchy, nor to take sides
among the contending factions of the 1890s.
123
Even assuming that the overthrow was illegal (as all rev-
olutions are) and undemocratic, nonetheless the Kingdom that was overthrown was not a nation of eth-
nic Hawaiians alone. The Kingdom had thousands of citizens and voters of other ancestries and their
numbers were growing toward a majority. Just as the Kingdom included them, so its overthrow affect-
ed them in ways that took decades to unfold.
III. VOTING RIGHTS AND CITIZENSHIP UNDER THE REPUBLIC
A. Voting Rights
As in 1864 and 1887, the winners in 1893 tried to ensure that they would have an electoral major-
ity by limiting the franchise to their likely supporters. The victorious leaders of the 1893 coup created
116
3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 473-74. Liliuokalani succeeded to the throne because she was specifically
named as Kalakauas heir in Article 22 of the 1887 Constitution. She took the oath to the 1887 Constitution as required
by Article 24. 3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 474.
117
3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 582; K
UYKENDALL
, C
ONSTITUTIONS
at 56.
118
L
ILIUOKALANI
, H
AWAI
I
S
S
TORY BY
H
AWAI
I
S
Q
UEEN
at 238 (1964 reprint of 1898 ed.).
119
United States Commissioner James H. Blount acquired a copy of the Queens draft constitution and published it in his
report which supported the Queens side of the dispute about her overthrow. J.H. B
LOUNT
, R
EPORT OF THE
C
OMMISSIONER TO THE
H
AWAIIAN
I
SLANDS
at 581-90 (1893) (B
LOUNT
R
EPORT
); 3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 585-86; R
USS
, H
AWAIIAN
R
EVOLUTION
at 66-67. Under Liliuokalanis proposed constitution, the Queen would have
appointed the Nobles and the cabinet members who would sit as legislators in a one-house legislature with the represen-
tatives of the people; thus her appointees would be a majority of the legislature. Kamehameha Vs property qualification
would have been restored.
120
Compare 2 B
RACTON
, O
N THE
L
AWS AND
C
USTOMS OF
E
NGLAND
at 33 (king is under God and the law because the
law makes the king).
121
3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 584-85; W. Russ, T
HE
H
AWAIIAN
R
EVOLUTION
66-68 (1992; original edition
1959).
122
3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 585-86.
123
The history of the overthrow of the monarchy is intensely controversial but the controversy is beyond the scope of this
article. Particularly controversial is the role of the American minister, John Stevens, and American sailors and marines
landed from the U.S.S. Boston during the crisis. For various views on these events, see 3 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 582-650; R
USS
, T
HE
H
AWAIIAN
R
EVOLUTION
; T. C
OFFMAN
, N
ATION
W
ITHIN
(no date); T. T
WIGG
-S
MITH
,
H
AWAIIAN
S
OVEREIGNTY
: D
O THE
F
ACTS
M
ATTER
? (1998); N
ATIVE
H
AWAIIAN
S
TUDY
C
OMMISSION
, R
EPORT ON THE
C
ULTURE
N
EEDS AND
C
ONCERNS OF
N
ATIVE
H
AWAIIANS
, Vol. I at 293-300, Vol. II at 54-79 (1983); B
LOUNT
R
EPORT
;
S
ENATE
R
EPORT
227, 53D C
ONGRESS
, 2D S
ESSION
(M
ORGAN
R
EPORT
) (1894); L
ILIUOKALANI
, H
AWAI
I
S
S
TORY BY
H
AWAI
I
S
Q
UEEN
; D
OLE
, M
EMOIRS OF THE
H
AWAIIAN
R
EVOLUTION
.
VOL. V NO. 13
THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
27
a Provisional Government and sought annexation by the United States.
124
When a change of admin-
istration in Washington blocked annexation, they organized the Republic of Hawai`i.
125
The nineteen
members of Provisional Governments governing councils appointed themselves to the convention that
wrote the Republics constitution.
126
Eighteen more delegates were elected by voters who had to swear
loyalty to the new regime and forswear any intent to restore the monarchy.
127
This loyalty requirement
reduced the size of the electorate by about two-thirds compared to the 1890 election.
128
Voting under the 1894 Constitution of the Republic was restricted to those the governing group
trusted. Like Kamehameha V, the self-appointed leaders of the Republic believed that universal suf-
frage was altogether beyond the capacity
129
of the people of Hawai`i. As one leader of the Provisional
Government explained, the problem to be solved is, how to combine an oligarchy with a representa-
tive form of government so as to meet the case.
130
The Constitution of the Republic solved the prob-
lem by imposing a loyalty oath specifically disavowing the Monarchy,
131
and creating a voter registra-
tion board with broad discretion to determine who should be allowed to vote.
132
The Republics Constitution removed the express racial exclusion of Asians from voting rights that
the last constitution of the Kingdom had imposed. There were no subsequent racial qualifications on
voting in Hawai`i law until the Office of Hawaiian Affairs (OHA) was created in 1978 with a racial-
ly discriminatory franchise.
133
However, voting rights under the Republic were limited to citizens and
denizens. Because very few Japanese immigrants had become naturalized citizens or denizens, this rule
excluded nearly all of them from voting but avoided offending the Japanese government by openly dis-
criminating against Japanese.
134
B. Citizenship
Citizenship under the Republic extended far beyond the narrow boundaries of voting rights. The
1894 Constitution of the Republic, Art. 17, included a explicit provision, copied from the Fourteenth
Amendment of the United States Constitution, that everyone born in Hawai`i was a citizen of the
Republic: All persons born or naturalized in the Hawaiian Islands, and subject to the jurisdiction of
the Republic are citizens thereof. In
McFarlane v. Collector
,
135
the Supreme Court held that a person of
foreign parentage born in Hawai`i in 1847 was a citizen by birth. The Supreme Court not only relied
on the Republic's Constitution, citing American Fourteenth Amendment cases to interpret it, but also
124
See generally
, R
USS
, H
AWAIIAN
R
EVOLUTION
at 135-53; KUYKENDALL, 3 T
HE
H
AWAIIAN
K
INGDOM
at 605-16.
125
See generally
, W. R
USS
, T
HE
H
AWAIIAN
R
EPUBLIC
(1962).
126
Id.
at 15.
127
Id.
at 20, 26-27.
128
Id.
at 26-27.
129
2 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 127 (quoting Kamehameha V).
130
R
USS
, H
AWAIIAN
R
EPUBLIC
at 15 (quoting comment of Attorney General W.O. Smith).
131
1894 Const. of the Republic, Art. 101.
132
1894 Const. of the Republic, Arts. 77-78. In addition, the Constitution of the Republic required literacy in English
or Hawaiian. Art. 74, § 7.
133
Rice v. Cayetano
, 528 U.S. 495 (limiting voting rights to persons descended from inhabitants of Hawai`i in 1778 is uncon-
stitutional racial classification).
134
Japan in the 1890s was a rising naval power; it sent a warship to Hawai`i for a lengthy visit. R
USS
, H
AWAIIAN
R
EPUBLIC
at 136-38, 143, 166. The Japanese government insisted that its citizens should be given the same treatment as American
and European immigrants to Hawaii: if the latter were to be given the vote, then Japanese in Hawai`i should be given the
vote.
Id.
at 23-25, 136. That would have given the Japanese close to an electoral majority, which the leaders of the
Republic wanted to avoid.
Id
. at 31. The voting laws of the Republic offered the possibility of carefully selected Japanese
being given the vote as denizens, while effectively maintaining the control of the governing faction.
Id
. at 32.
135
11 Haw 166 (1897).
28
HAWAII BAR JOURNAL
VOL. V NO. 13
quoted an American case that said that the rule of citizenship by birth went back to the common law.
136
The Hawai`i Supreme Court also relied on the lower courts decision in
United States v. Wong Kim Ark
,
137
recognizing that American-born children of Chinese immigrants are citizens.
The laws of the Republic, like the laws of the Kingdom, provided for naturalization of foreigners
and offered denization as a status of dual citizenship.
138
The Republic also offered the privileges of cit-
izenship by special certificate to aliens who had supported the Provisional Government.
139
The Republic
granted denization and special certificates to 362 aliens.
140
The Republic was not a democracy, yet it laid the groundwork for a democracy. If it had endured,
its citizenship law would likely have led to a multi-racial democracy in about a generation, when the
children of the Asian immigrants reached voting age. More significantly, the leaders of the Republic
aimed to persuade the United States to annex Hawai`i and accomplished their aim.
141
Annexation
brought Hawai`i under the Constitution of the United States, including the Fourteenth Amendment,
peacefully establishing a democracy in the long run.
142
IV. AMERICAN CITIZENSHIP FOR HAWAIIAN CITIZENS
A. Territory and State
Annexation to the United States led to full democratic government in Hawai`i. The Constitution
of the United States . . . [became] the heritage of all the citizens of Hawai`i.
143
Annexation ended the
series of coups and attempted coups that had disrupted the politics of Hawai`i.
144
It eliminated the
option of re-writing the voting laws to exclude voters that the ruling faction disliked.
145
After Hawai`i was annexed to the United States in 1898, Congress passed the Organic Act making
Hawai`i a territory in 1900.
146
Sec. 4 of the Organic Act granted American citizenship to everyone who
had been a subject or denizen of the Kingdom and everyone who had been a citizen of the Republic
of Hawaii, i.e., everyone who was born or naturalized in Hawai`i during the Monarchy and its succes-
sor governments.
147
Persons who had obtained denizen status under the Kingdom or the Republic also
became American citizens because the United States recognized denization as being dual citizenship.
148
136
Id.
, quoting Ex parte Chin King, 35 F. 355 (1888).
137
71 F. 382 (D. Or. 1896). The United States Supreme Courts decision,
United States v. Wong Kim Ark
, 169 U.S. 649, affirm-
ing the district court, had not yet been decided.
138
Constitution of the Republic Art. 17, Art. 19.
139
Id
. Art. 17, § 2.
140
H. A
RAI
, I
NDICES TO
C
ERTIFICATES OF
N
ATIONALITY
1846-1854, D
ENIZATION
1846-1898, O
ATHS OF
L
OYALTY TO THE
R
EPUBLIC FROM
O
AHU
1894,
AND
C
ERTIFICATES OF
S
PECIAL
R
IGHTS OF
C
ITIZENSHIP
1896-1898 (hand count of indexed
names for period of the Republic).
141
See
R
USS
, T
HE
H
AWAIIAN
R
EPUBLIC
at 372-379 (summarizing the history and policy of the Republic).
142
Of course, in the long run, the leaders of the Republic were all dead. The attitude of the government of the Republic
to democracy is reminiscent of St Augustine when he was a wild young man and prayed to God, Make me chaste . . .
but not yet. A
UGUSTINE
, C
ONFESSIONS
, Bk. 8, Chap. 7. The Republic wanted Hawai`i to be a democracy, but not yet.
143
Rice v. Cayetano
, 528 U.S. at 524.
144
The Kingdom experienced successful coups in 1864, 1887, and 1893 and unsuccessful attempted coups in 1889, 1892,
and 1893. The Republic suppressed a coup attempt in 1895.
145
See
J. M
ADISON
, A. H
AMILTON
& J. J
AY
, T
HE
F
EDERALIST
P
APERS
, No. 10, at 77-84 (Rossiter ed. 1961) (a federal union
tends to break and control the violence of faction);
Rice v. Cayetano
(striking down exclusion of voters from OHA elec-
tions).
146
Act of April 30, 1900, c. 339, 31 Stat. 141.
147
I
MMIGRATION
L
AW AND
P
ROCEDURE
, § 92.04[3] n. 41; 3 H
ACKWORTH
, D
IGEST OF
I
NTERNATIONAL
L
AW
, 125, 126.
148
3 H
ACKWORTH
, D
IGEST OF
I
NTERNATIONAL
L
AW
, 126-127, quoting Memorandum of the Office of the Solicitor for
the Department of State, Oct. 17, 1924, file 130 Hackfeld, John F. (concerning the claim of Clarence W. Ashford, a British
subject who claimed American citizenship based on having been granted Hawaiian denization in 1883).
VOL. V NO. 13
THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
29
In 1901, Ching Tai Sai arrived in Honolulu from China, claiming to be an American citizen even
though he had never set foot in America and his parents had been Chinese subjects. In
United States v.
Ching Tai Sai
,
149
the court held he was an American because (1) he had been born in Hawai`i during the
days of the Kingdom; (2) therefore, he had been a Hawaiian citizen under Hawaiian law; (3) therefore
he became an American citizen under the Organic Act.
150
Furthermore, by virtue of the Fourteenth Amendment, persons born in Hawai`i after Annexation
were native American citizens, regardless of their ancestry or the citizenship of their parents.
151
The
Organic Act removed all property qualifications for voting that had applied in the Kingdom and the
Republic as well as the political disqualifications imposed by the Republic.
152
In 1920, for the first time in the history of Hawai`i, women obtained the right to vote.
153
During this period, while ethnic Hawaiians were American citizens, tribal American Indians gen-
erally were not citizens. Ethnic Hawaiians who had been born in Hawai`i had been Hawai`i citizens
and so became American citizens as a result of the Organic Act. The Fourteenth Amendment made
everyone born in Hawai`i after the Organic Act was passed a citizen by birth because they had been
born subject to the jurisdiction of the United States. By contrast, the Supreme Court held that tribal
American Indians generally were not American citizens because, although they were born in the United
States, they were not directly subject to the jurisdiction of the United States, but rather were subject
to the jurisdiction of their tribes.
154
It was not until 1924 that an act of Congress made all American
Indians American citizens.
155
Because Hawaiians were never members of a tribe, they were not affect-
ed by this discriminatory rule denying tribal Indians citizenship under the Fourteenth Amendment.
156
During most of the Territorial period, Asian immigrants (except for those who had become natu-
ralized in Hawai`i before Annexation) were barred from voting because they were not citizens and could
not become citizens. Although persons of Asian descent who had been Hawaiian citizens before
Annexation became American citizens under the Organic Act,
157
Asian immigrants were not eligible to
become naturalized American citizens at that time. The racial restriction on naturalization of Asians
predated Annexation.
158
American citizenship was a requirement for voting in Territorial elections.
159
The result of the racially discriminatory naturalization laws was that ethnic Hawaiians, although they
were a minority of the population, were a majority of the electorate until the 1930s.
160
149
1 U.S. Dist. Ct. Haw. 118 (1901).
150
Accord,
United States v. Dang Mew Wan Lum
, 88 F.2d. 88, 89 (9th Cir. 1937) (woman born of Chinese parents in Hawaii
during period of Provisional Government became American citizen under Organic Act); 3 H
ACKWORTH
, D
IGEST OF
I
NTERNATIONAL
L
AW
at 120.
151
United States v. Wong Kim Ark
. 3 H
ACKWORTH
, D
IGEST OF
I
NTERNATIONAL
L
AW
at 120. Everyone born in the United
States and subject to its jurisdiction is a native American citizen. B
LACK
S
L
AW
D
ICTIONARY
1047 (7th ed. 1999) (a
native is a person who is a citizen of a particular . . . nation by virtue of having been born there).
152
Organic Act §§60, 62.
153
U.S. Constitution, Nineteenth Amendment (ratified 1920).
154
Elk v. Wilkins
, 112 U.S. 94 (1884).
155
Indian Citizenship Act
, 43 Stat. 253 (1924).
156
See MacFarlane v. Collector
, 11 Haw. at 175 (distinguishing
Elk
on the grounds that the relation of Indians to the United
States is peculiar and so is irrelevant to the general principle of nationality of birth applicable in Hawai`i).
157
Organic Act, § 4,
United States v. Ching Tai Sai
, 1 U.S. Dist. Ct. Haw. 118 (1901).
158
Chinese Exclusion Act of May 6 1882, 22 Stat. 58;
Toyota v. United States
, 268 U.S. 402, 408 (1925) (discussing history
of racial restriction on naturalization).
159
Organic Act, §§ 60 and 62.
160
In 1930, Asians accounted for 64% of the population but only 26% of adult citizens. The percentage of voters who
were of Japanese ancestry rose from 3% in 1920 to 8% in 1926 to 25% in 1936. R.C. P
RATT
& Z. S
MITH
, H
AWAI
`
I
P
OLITICS AND
G
OVERNMENT
37 (2000).
30
HAWAII BAR JOURNAL
VOL. V NO. 13
However, the children of Asian immigrants were American citizens by birth and eligible to vote
when they came of age.
161
Eventually, Congress allowed Asian immigrants to become naturalized citi-
zens. Chinese immigrants became eligible for naturalization in 1943.
162
Japanese and other Asian aliens
became eligible for naturalization under the Immigration and Nationality Act of 1952.
163
In 1959, when Hawai`i became a state, its citizens gained the equal right with all other Americans
to elect congressional representatives and senators and vote for president.
164
Just as there is only one
class of American citizen, there is only one class of American state.
165
The citizens of Hawai`i took their
equal place with the citizens of the other forty-nine sovereign states of the Union.
B.
Rice
and
Arakaki
: Voting Rights Lost and Restored
In 1978, a state constitutional amendment created OHA, a state agency, to administer state
resources for the benefit of Hawaiians.
166
Another proposed constitutional amendment that would have
limited OHAs beneficiaries, voters, and office-holders to ethnic Hawaiians failed to gain ratification
because the constitutional convention failed to disclose that racial limitation to the voters.
167
However,
the legislature added that limitation by a statute that defined the constitutional term Hawaiian in
terms of ancestry and race.
168
This denied the right to vote in OHA elections to the vast majority of
Hawai`is voters.
169
In
Rice v. Cayetano
, the United States Supreme Court held that the State's electoral restriction enacts
a race-based voting qualification
170
that violates the Fifteenth Amendment to the United States
Constitution.
171
Noting that 1778, the date in the statutory definition of Hawaiian was the date that
Hawai`is long isolation ended,
172
the Court drew the conclusion that [t]he State, in enacting the legis-
161
United States v. Wong Kim Ark
;
Terada v. Dulles
, 121 F.Supp. 6, 8 (D. Haw. 1954) (person born in Hawaii of Japanese par-
ents was by birth an American citizen by virtue of being born in the United States and a Japanese citizen by virtue of hav-
ing Japanese parents).
162
Pub L. No. 78-199, 57 Stat. 600 (Dec. 17, 1943) amending Naturalization Act of 1940 § 303, 54 Stat. 1140.
163
Pub. L. No. 82-414, 66 Stat. 163.
164
An Act to Provide for the Admission of the State of Hawaii into the Union, Act of March 18, 1959, Pub. L. 86-3, 73
Stat. 4.
165
Under the equal footing doctrine new states are admitted on terms of equality with existing states and every state is
equally self-governing. U.S. Constitution, Art. IV, § 3;
Coyle v. Smith
, 221 U.S. 558, 565 (1911).
166
Haw. State Const. Art. XII, §§ 5, 6 (added 1978).
167
Kahalekai v. Doi
, 60 Haw. 324, 342 (1979). In addition, blank ballots were counted as votes in favor of all of the pro-
posed constitutional amendments, id. at 328-329, making it impossible to determine how many voters actually intended
to cast ballots in favor of creating OHA. After the effect of blank ballots was publicized in subsequent litigation,
id.
, the
voters amended the state constitution in 1980 to prohibit counting blank ballots as yes votes. Haw. Constitution, Art.
XVII, § 2 Ratification, as amended in the Nov. 4, 1980 general election.
168
Haw. Rev. Stat. § 10-2. The definition of Hawaiian proposed by the Constitutional Convention in 1978 and not rat-
ified was any descendant of the races inhabiting the Hawaiian Islands previous to 1778. 1 P
ROCEEDINGS OF THE
C
ONSTITUTIONAL
C
ONVENTION OF
H
AWAI
`
I OF
1978, Committee of the Whole Rep. No. 13, at 1018 (emphasis added).
In Haw. Rev. Stat. § 10-2, the legislature substituted peoples for races but the legislative history shows that the mean-
ing was unaltered.
Rice v. Cayetano
, 528 U.S. at 516, quoting 1979 H
AWAI
`
I
S
ENATE
J
OURNAL
, Standing Comm. Rep. No.
784 at 1350, 1353-54; id. Conf. Comm. Rep. No 77 at 998.
169
In 1998, the last election held under the racially discriminatory rules struck down in Rice, there were 601,404 regis-
tered voters, of whom 100,143 (16.65%) were ethnic Hawaiians registered to vote in OHA elections. S
TATE OF
H
AWAI
I
D
EPARTMENT OF
B
USINESS
, E
CONOMIC
D
EVELOPMENT AND
T
OURISM
, S
TATE OF
H
AWAI
I
D
ATA
B
OOK
1998 252, 261
(1999).
170
Rice v. Cayetano
, 528 U.S. at 517.
171
The Fifteenth Amendment, § 1 provides that 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.
172
Rice
528 U.S. at 500, 514-15.
VOL. V NO. 13
THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
31
lation before us, has used ancestry as a racial definition and for a racial purpose.
173
The State and
OHA argued that the restriction of voting rights to descendants of people who lived in Hawaii in 1778
was part of a program to compensate the descendants of those who were harmed when the United
States assisted in the overthrow of the Kingdom in 1893.
174
However, as discussed above, the subjects
and voters of Hawai`i in 1893 were not limited to descendants of inhabitants in 1778, i.e. to ethnic
Hawaiians. In 1893, most ethnic Hawaiians could not vote but some persons who were not ethnic
Hawaiians were subjects, voters, and even prominent public officials. The Petitioner Harold F. Rice was
himself a descendant of a subject and public official of the Kingdom of Hawai`i.
175
The Court
observed that the States use of the 1778 date had nothing to do with the overthrow of the monarchy
115 years later; rather it was selected to use ancestry as a proxy for race.
176
Because the Fifteenth
Amendments prohibition on using racial classifications to deny or abridge the right to vote in state and
federal elections is explicit and comprehensive,
177
the Court concluded that denying persons who are
not ethnic Hawaiians the right to vote in OHA elections violates the Fifteenth Amendment.
More broadly, the Court reaffirmed the basic democratic principle that whether the classification
is called racial, ethnic, political, or something else, discrimination based on ancestry is wrong:
The Supreme Court rejected the three justifications that the State of Hawai`i and OHA offered for
the racially discriminatory voting laws.
179
First, the Court squarely rejected the argument that ethnic
Hawaiians are analogous to an Indian tribe so that the restriction is like restricting voting in tribal elec-
tions to tribal members.
180
Second, the Court rejected the justification that OHA elections are special
purpose elections, such as those for water districts, as to which the Fourteenth Amendment permits
173
Id.
at 515. The term race in the Fifteenth Amendment, enacted in 1870, encompasses ancestry-based groups that
are now commonly referred to as ethnic groups.
Id.
at 515. It would surely be implausible to suggest that there would
be no constitutional violation if a state disenfranchised Japanese-Americans while allowing Chinese-Americans to vote.
174
Brief for Respondent Benjamin J. Cayetano at 5-8, 34-35, 40, 46-49; Brief of Amicus Office of Hawaiian Affairs, et
al., at 3, 6-8, 14, 24. The State and OHA repeated essentially the same argument in
Arakaki
. State Defendants
Memorandum in Opposition to Plaintiffs Motion for Temporary Restraining Order and Injunctive Relief and in Support
of Defendants Motion for Summary Judgment filed August 3, 2000, at 5-10, 19, 32-33; and OHAs Proposed Intervenors-
Defendants Memorandum in Support of Defendants Motion for Summary Judgment and in Opposition to Plaintiffs
Cross-Motion for Summary Judgment filed September 5, 2000, at 19-24 (on file with author).
175
Rice
, 528 U.S. at 510; Brief for Petitioner, at 2, 8.
176
Rice
, 528 U.S. at 514.
177
The purpose and command of the Fifteenth Amendment are set forth in language both explicit and comprehensive.
The National Government and the States may not violate a fundamental principle: They may not deny or abridge the
right to vote on account of race. Rice, 528 U.S. at 511-12.
178
Rice
, 528 U.S. at 517. The origins of this principle go back to the original Constitution. See U.S. Constitution Art. I,
§ 9, clause 8 (United States forbidden to grant titles of nobility); Art. I § 10, clause 1 (states forbidden to grant titles of
nobility), Art. III, § 3, clause 2 ( prohibiting hereditary criminal status: no Attainder of Treason shall work Corruption
of Blood, or Forfeiture except during the Life of the Person attainted). Some of the advocates of limiting voting rights
by ancestry revived the idea of Corruption of Blood by arguing that plaintiff Rice should not be allowed to vote in
OHA elections because his grandfather had opposed King Kalakaua and Queen Liliuokalani.
See
H. Trask and M. Trask,
Rices discrimination claim reveals legacy of overthrow
, H
ONOLULU
A
DVERTISER
, October 3, 1999.
179
Justice Kennedy wrote the majority opinion, joined by Chief Justice Rehnquist, and Justices OConnor, Scalia, and
Thomas. Justice Breyer wrote a concurrence joined by Justice Souter. Justices Stevens and Ginsberg dissented.
180
Rice
, 528 U.S. at 518-22. The Indian tribe analogy is discussed in the last section of this article.
32
HAWAII BAR JOURNAL
VOL. V NO. 13
One of the principal reasons race is treated as a forbidden classification is that it demeans the
dignity and worth of a person to be judged by ancestry instead of by his or her own merit
and essential qualities. An inquiry into ancestral lines is not consistent with respect based on
the unique personality each of us possesses, a respect the Constitution itself secures in its con-
cern for persons and citizens.
178
departures from the one-person one-vote rule; there is no such exception to the Fifteenth Amendment.
181
Finally, the Court rejected the argument that the racial restriction ensured an alignment of interests
between the trustees and the beneficiaries of a racially restricted trust. Without reaching the question
of whether the federal or state government has a trust obligation to ethnic Hawaiians or whether such
a trust would itself be constitutional, the Court rejected the trust argument for two distinct reasons.
First, it was inconsistent with the OHA statutory scheme because, although the bulk of OHAs trust
funds are earmarked for the benefit of "native Hawaiians" (i.e. those with 50% ethnic Hawaiian blood
quantum), both "native Hawaiians" and "Hawaiians" (those with any degree of Hawaiian ethnicity)
could vote for trustees.
182
More significantly, the trust argument failed because it rested on the demean-
ing premise that citizens of a particular race are somehow more qualified than others to vote on certain
matters.
183
The government may not assume, based on race, that . . . its citizens will not cast a prin-
cipled vote.
184
Justices Breyer and Souter concurred on the ground that there is no federal trust rela-
tionship with ethnic Hawaiians and that the class of ethnic Hawaiians are not analogous to an Indian
tribe.
185
Justices Stevens and Ginsberg dissented, accepting the analogy between Hawaiians and mem-
bers of recognized Indian tribes.
186
Because the decision was grounded on the Fifteenth Amendment, which absolutely prohibits racial
discrimination in voting, the case turned on the determination that the classification descendants of the
inhabitants of Hawaii in 1778 is a racial classification.
Rice
has been criticized for disregarding the his-
tory of Hawai`i,
187
but that misses the true historical significance of the decision. The historical fact that
mattered was that 1778 was the year that Hawai`is long isolation from the outside world ended and
therefore had been selected as a proxy for race. Descendants of the inhabitants of Hawai`i in 1778
singles out ethnic Hawaiians as clearly as descendants of the inhabitants of sub-Saharan Africa in
1492 singles out blacks.
188
Beyond its Fifteenth Amendment rationale, the holding in
Rice
, by striking
down the first express racial exclusion since the Bayonet Constitution, advances Hawai`is historical tra-
dition of expanding the right to vote.
In
Arakaki v. State of Hawai`i
,
189
the United States District Court for the District of Hawai`i extend-
ed the principle of
Rice
to hold that state laws that denied to non-Hawaiians the right to run for the
office of OHA trustee were also unconstitutional racial discrimination violating the Fourteenth
181
Id.
, 528 U.S. at 522.
182
Id.
, 528 U.S. at 523.
183
Id.
Compare the premise, advanced by Kamehameha V to justify his coup, that universal suffrage was altogether
beyond the political capacity of the Hawaiian people. 2 K
UYKENDALL
, H
AWAIIAN
K
INGDOM
at 127 (quoting
Kamehameha V).
184
Id.
Having decided the case under the Fifteenth Amendment, the Court did not reach Rices claims that the State had
also violated his rights under the Fourteenth Amendment Equal Protection Clause.
185
Id.
, 528 U.S. at 525-27. Justice Breyer noted that the statutory definition of the favored class of Hawaiians includ-
ed everyone with the slightest descent from the pre-contact inhabitants of Hawai`i. He concluded that to define mem-
bership in the class in terms of 1 possible ancestor out of 500, thereby creating a vast and unknowable body of poten-
tial members -- leaving some combination of luck and interest to determine which potential members become actual vot-
ers -- goes well beyond any reasonable limit and does not resemble any actual membership classification created by any
actual tribe.
Id.
, 528 U.S. at 527.
186
Id.
, 528 U.S. at 528-48.
187
S.K. Hom & E.K. Yamamoto,
Symposium: Race and the Law at the Turn of the Century: Collective Memory, History and Social
Justice
, 47 U.C.L.A. L. R
EV
. 1747, 1766-76 (2000).
188
Hawai`i is not the first state to have selected a date to define a racial classification.
See Guinn v. United States
, 238 U.S.
347, 360-63 (1915) (invalidating as racially discriminatory an Oklahoma statute that imposed a literacy requirement on
voters but contained a grandfather clause exempting individuals entitled to vote on January 1, 1866, a date prior to
passage of the Fifteenth Amendment when only whites could vote, as well as the lineal descendants of such voters).
189
D. Haw. No. 00-00514 HG-BMK (September 19, 2000) (appeal pending). The author of this article is one of the attor-
neys representing the Plaintiffs in
Arakaki
. The appeal by the State of Hawai`i has been briefed in the 9th Circuit.
VOL. V NO. 13
THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
33
Amendment, as well as the Fifteenth Amendment.
190
The court pointed out that ours is a political sys-
tem that strives to govern its citizens as individuals rather than as groups and [r]acial classifications
are particularly harmful when used with respect to voting as they threaten to balkanize us into com-
peting racial factions.
191
The United States Constitution protects Hawai`i from such balkanization. In
Arakaki
, the court
held that under the Equal Protection Clause of the Fourteenth Amendment individuals have the con-
stitutional right to be considered for public office without the burden of invidious discrimination.
192
The States discriminatory scheme could not survive strict scrutiny because it was not narrowly tailored
to any compelling state interest. Just as Hawai`i may not assume, based on race, that . . . any . . . of
its citizens will not cast a principled vote
for
trustee, it may not assume, based on race, that . . . any of
. . . its citizens will not cast a principled vote
as
trustees.
193
The court also held that the states discrim-
ination against candidates violated the Fifteenth Amendment by abridging the right to vote on account
of the race of the candidates.
194
Although OHAs racial restriction applied only to the elections for OHA trustees, nonetheless it was
the first narrowing of the Hawai`i electorate since the Organic Act restored voting rights to all male cit-
izens. The only parallel in Hawai`is history to OHAs explicit racial discrimination in voting rights was
the provision of the Bayonet Constitution that disenfranchised Asians.
195
Of both exercises in disen-
franchisement, it can be said that the use of racial classifications is corruptive of the whole legal order
democratic elections seek to preserve.
196
It is corruptive of democracy, not only because it demeans the dignity and worth of a person to
be judged by ancestry instead of by his or her own merit and essential qualities,
197
but because racial
classifications encourage racial partisanship. In
Wright v. Rockefeller
,
198
Justice William O. Douglas com-
pared an alleged racial gerrymander to the electoral register system formerly used in Lebanon, Cyprus
and colonial India to ensure that each racial or religious group got its own little piece of the govern-
ment. Under an electoral register system, as under the OHA laws, certain offices are set aside for cer-
tain ethnic or religious groups and only members of those groups can vote for those offices. Justice
Douglas said:
190
H.R.S. § 13D-2 required that to be eligible for election or appointment to the OHA Board of Trustees, a person must
be qualified to vote under H.R.S. § 13D-3, which in turn required that the person be Hawaiian, HRS § 13D-3(a)(1).
Hawaiian is defined in H.R.S. §§ 10-2 and 11-1 in the sense of descent from inhabitants of Hawai`i in 1778, which
Rice
holds defines a racial classification.
191
Id.
, slip op. at 4-5, quoting
Shaw v. Reno
, 509 U.S. 630, 657 (1993).
192
Arakaki
, slip op. at 26.
193
Id.
slip op. at 20.
194
Id.
slip op. at 20-22, relying on
Rice
and on
Hadnot v. Amos
, 394 U.S. 358 (1968) (holding that excluding candidates from
the ballot because of their race violated the Fifteenth Amendment). The District Court also held that the racial discrim-
ination against candidates in OHA elections violated the Voting Rights Act of 1965, 42 U.S.C. § 1973.
Arakaki
, Slip op.
at 22-25.
195
1887 Constitution, Art. 59, 62, in L
YDECKER
at 166-168. The racial exclusion imposed by the 1887 Constitution
applied to all elections and so was more extreme than the racial restriction in OHA elections.
196
Rice
, 528 U.S. at 517.
197
Id
.
198
376 U.S. 52 (1964).
199
Wright v. Rockefeller
, 376 U.S. at 67 (Douglas, J. dissenting), quoted in
Shaw v. Reno
, 509 U.S. 630, 648 (1993).
34
HAWAII BAR JOURNAL
VOL. V NO. 13
When racial or religious lines are drawn by the State, the multiracial, multireligious commu-
nities that our Constitution seeks to weld together as one become separatist; antagonisms that
relate to race or to religion rather than to political issues are generated; communities seek not
the best representative but the best racial or religious partisan. Since that system is at war
with the democratic ideal, it should find no footing here.
199
The rise of racial partisanship as a result of Hawai`is version of an electoral register is illustrated
by OHAs argument in
Arakaki
that a particular candidate should be excluded from the ballot because
he had criticized OHA as being racially discriminatory, an opinion that OHA contended was incom-
patible with exclusive fiduciary devotion to the class of Hawaiians.
200
Compare the Republics use of
a loyalty oath and a voter registration commission to exclude voters who had expressed royalist opin-
ions: in both cases, the group in power wanted to exclude voters and candidates that it did not trust.
In a democracy, the people choose the government, but under this strategy, the government chooses the
people.
201
The District Court rejected OHAs argument because barring a candidate from the ballot as
a result of that candidates public comments would strike a blow to one of our systems most funda-
mental principlesthe right to robust public debate on matters of self-government.
202
Racial discrim-
ination is not immunized from constitutional challenge by combining it with political discrimination.
203
Rice
restored the historic trend toward equal voting rights by overturning the racial discrimination
in the OHA voting laws and rejecting the demeaning premise that citizens of a particular race are
somehow more qualified than others to vote on certain matters.
204
Arakaki
extended
Rice
to running for
office and rejected the first attempt in Hawai`i since Annexation to exclude candidates based on their
expressions of political beliefs.
205
In the first OHA election after
Arakaki
opened the ballot, 97 candidates
of different ethnic backgrounds ran, advocating views ranging from ending discrimination in OHA pro-
grams to restoring an independent Hawaiian kingdom; one candidate who is not of ethnic Hawaiian
ancestry was elected.
V. RACIALLY EXCLUSIVE GOVERNMENT VIOLATES
HAWAI`IS TRADITION OF INCLUSION.
Dissatisfied with
Rice
and
Arakaki
opening OHA elections to all citizens, various factions have
advanced competing proposals to create a governmental entity with citizenship, voting rights, and office
200
Proposed Intervenors-Defendants Memorandum in Support of Defendants Motion for Summary Judgment and
Opposition to Plaintiffs Cross Motion for Summary Judgment at 24-34, filed September 5, 2000 (both arguing that
Plaintiff Kenneth R. Conklin should be barred from running for OHA trustee because of public statements he had
allegedly made critical of OHA and racial preferences for ethnic Hawaiians).
201
Reacting to the 1953 East German revolt against the Communist government, the poet Bertold Brecht wrote:
The Secretary of the Writers' Union
Had leaflets distributed in the Stalinallee
Stating that the people
Had forfeited the confidence of the government
And could win it back only
By redoubled efforts. Would it not be easier
In that case for the government
To dissolve the people
And elect another?
"The Solution." B. B
RECHT
, P
OEMS
, 440 (1976).
202
Id.
, slip op. at 37. The court relied on
Communist Party of Indiana v. Whitcomb
, 414 U.S. 441 (1974), which held that the
First Amendment is violated by a state law requiring a political party to file a statement that it will not advocate the over-
throw the government by force.
203
See Hadnot v. Amos
, 394 U.S. 358 (denying candidates right to run because of their race and because of their political
beliefs violated both the Fifteenth and the First Amendments).
204
Rice
, 528 U.S. at 523.
205
Arakaki
, slip op. at 36-37. Following the District Court decision in
Arakaki
, one of the plaintiffs in that case brought a
new case challenging the racial restriction on eligibility for OHAs programs and for homesteads offered by the
Department of Hawaiian Home Lands.
Barrett v. State of Hawai`i
, CV00-00645 DAE-KSC. It has been consolidated with
another case raising similar claims,
Carroll v. Nakatani
, Civil No. CV00-00641 DAE-KSC.
Barrett
has been dismissed on
standing grounds. An appeal is pending in the Ninth Circuit. The author is one of the attorneys representing Mr. Barrett.
VOL. V NO. 13
THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
35
holding restricted to ethnic Hawaiians. Because they define themselves by ethnicity, they necessarily
define themselves as a minority in a state that has no ethnic majority. Like the factions that launched
the coups in 1864, 1887 and 1893, to gain the power they seek, they must somehow disenfranchise the
majority. Numerous factions propose a wide range of plans on how to accomplish this, from secession
and reestablishment of a monarchy to a federal statute that would create a quasi-sovereign agency
modeled on an Indian tribe.
206
Each of these plans would give the new minority government exclusive
power over some or all of Hawai`is public lands and funds. All of these proposals depart from the con-
stitutional principle of equal protection and the centuries-old Hawaiian tradition of inclusiveness.
A. Ethnic Hawaiians Are Not an Indian Tribe.
In response to
Rice
, Hawai`is Senator Daniel Akaka sponsored a bill that would have create a fed-
eral equivalent of OHA modeled on a federally recognized Indian tribe.
207
Sen. Akaka and other sup-
porters of the bill argue that Hawaiians are like federally recognized Indian tribes and ought to be rec-
ognized as such. They also claim that creating a governmental entity restricted to ethnic Hawaiians
would be proper redress for the overthrow of the monarchy in 1893.
208
The bill, submitted late in the
2000 session, died at the end of the 106th Congress but Senator Akaka introduced it again in the next
Congress.
209
Under the bill, the Department of the Interior would create a roll of Native
Hawaiians.
210
The criterion for qualifying for the Secretarys roll is the same criterion that the Supreme
Court in
Rice
held is a racial classification: descent from inhabitants of Hawai`i in 1778.
211
Anyone
206
Under some of the more extreme proposals Hawai`i would secede from the Union and a independent government
would be set up that would be exclusively controlled by ethnic Hawaiians or in which ethnic Hawaiians would be guar-
anteed control of key positions. More moderate proposals would create a racially exclusive governmental agency within
the state or federal government or would create a racially exclusive government modeled on an Indian tribe that would
control all or part of Hawaiis public lands. The class of proposals modeled on Indian tribes is sometimes called the
nation within a nation model. Surveys of the wide range of proposals that use the slogan Hawaiian sovereignty can
be found in S.P. King,
Hawaiian Sovereignty
, H
AW
. B
AR
. J. July 1999, p. 6; J.C.F. W
ANG
, H
AWAI
`
I
S
TATE AND
L
OCAL
P
OLITICS
,
105-108 (1998); T. Castanha,
The Hawaiian Sovereignty Movement: Roles of and Impacts on Non-Hawaiians
(1996),
www.hookele.com/non-hawaiians (visited Oct. 2, 2001). Links to the websites of many of these organizations can be
found at www.hawaii-nation.org (visited Oct. 2, 2001).
207
S. 2899 and S. 81 (106th Congress, 2d Session, 2000). An identical bill, H.R. 4904 (106th Congress, 2000), was spon-
sored in the House of Representatives by Rep. Neil Abercrombie of Hawai`i.
208
On the debate over the overthrow of the monarchy,
see
the sources cited in n. 122,
supra
, and Hanifin,
Hawaiian
Reparations: Nothing Lost, Nothing Owed
, 17 H
AW
. B
AR
. J. No. 2 107(1982)
209
Susan Roth,
Native Legislation Dies in Senate
, HONOLULU ADVERTISER, Dec. 14, 2000 p. A1. The bill has been rein-
troduced in the 107th Congress as S. 81 and H.R. 617.
210
S. 2899 § 7.
211
S. 2899 § 2(1), (6) (7). Sec. 7(a)(1)(A)(i) limits the roll to the lineal descendants of the aboriginal, indigenous, native
people who resided in the islands that now comprise the State of Hawaii on or before January 1, 1893, and who occupied
and exercised sovereignty in the Hawaiian archipelago. At first glance this would suggest that the key date is January 1,
1893, and the criterion is linked to the overthrow of the monarchy in January 1893. However aboriginal, indigenous,
native people is defined in § 2(1) to mean those people whom Congress has recognized as the original inhabitants of the
lands and who exercised sovereignty prior to European contact in the areas that later became part of the United States.
Sec. 1(2) of the bill says that Congress finds that Native Hawaiians, the native people of the Hawaiian archipelago, . . .
are indigenous native people of the United States. Sec. 2(6) defines indigenous native people as the lineal descen-
dants of the aboriginal, indigenous native people of the United States. For Hawai`i, first European contact occurred in
1778, when Captain Cook arrived. In short, to qualify for the roll, a person must be descended from someone who lived
in Hawai`i in 1778. Compare the state statutory definition of Hawaiian that the Supreme Court held in
Rice
is a racial
classification: any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and
subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii. Haw. Rev.
Stat. § 10-2. The reference to persons who exercised sovereignty, copied from the state statute to the federal bill, was
intended to avoid the shipwrecked sailor problem. As the Hawai`i legislatures conference committee report on the 1979
36
HAWAII BAR JOURNAL
VOL. V NO. 13
could apply for inclusion on the roll but anyone else could challenge the applicants ethnic qualifica-
tion.
212
A federal commission with membership restricted to ethnic Hawaiians would then examine
applicants genealogies to determine if they are really ethnic Hawaiians.
213
The Secretary of the
Interior would establish a process by which questions regarding an individuals ethnic purity could be
appealed.
214
The roll of federally approved ethnic Hawaiians would be the voting roll for an election
for a Native Hawaiian Interim Governing Council which would act as a constitutional convention to
draft organic governing documents for a Native Hawaiian Government.
215
The ethnic Hawaiians
on the Secretarys roll would vote again on the draft constitution.
216
Both elections would be paid for
and managed by the Department of the Interior.
217
If the racially restricted electorate approves the con-
stitution, then the Native Hawaiian Government would be officially recognized by the federal gov-
ernment that had created it, as if it were a pre-existing Indian tribe.
218
The Secretary of the Interior
and the State could then negotiate with the Native Hawaiian Government to transfer land and money
to that agency without further congressional authorization.
219
Later in the 2001 session, Senator Akaka filed an alternative version of the bill that deleted the
specification of a process for creating an ethnic Hawaiian government.
220
The essential structure
remained: the definition of native Hawaiian picks out the same classification that the
Rice
Court
determined is a racial classification: descent from inhabitants of Hawai`i in 1778. No knowledge or
interest in Hawaiian culture is required; the membership test is purely one of ancestry. The federal gov-
ernment would empower the members of the racial class to form a government, the Native Hawaiian
governing entity, which would be granted unspecified governmental authorities and would be enti-
tled to negotiate with the federal and state governments to receive lands and other assets.
221
The process
would be funded by the federal government.
222
OHA laws explains, it is conceivable that persons descended from any race which may have been shipwrecked on
Hawai`i before 1778 could claim to be descended from races inhabiting the Hawaiian Islands previous to 1778. Stand.
Comm. Rep. No. 784, in 1979 Sen. J. at 1353. To ensure that OHA would be racially exclusive, the legislature revised
the definition of Hawaiian to include the reference to those who exercised sovereignty.
Id.
at 1353-55. Sen. Akakas
bill also defines Native Hawaiian to include persons who were eligible in 1921 for the programs authorized by the
Hawaiian Homes Commission Act (42 Stat. 108, chapter 42) and their descendants. S. 2899 § 2(7)(A). This incorpo-
rates by reference the definition of Native Hawaiian in that act, a definition which again points back to 1778 and to race:
any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to
1778. Hawaiian Homes Commission Act § 201(a)(7) (emphasis added). The Supreme Court held that this definition is
a racial classification.
Rice
, 528 U.S. at 516-517.
212
S. 2899 and S. 81 § 7(a)(1), 7(a)(3)(C).
213
Id.
, § 7(a)(2).
214
Id.
, 7(a)(3)(C).
215
Id.
, § 7(c).
216
Id.
, § 7(c).
217
Id.
§§ 7, 8.
218
Id.
, § 7(d). The bill would expressly override the Departments rules for recognizing genuine Indian tribes, 25 C.F.R.
§§ 83.1, 83.7, and any other law that would prevent recognition of the Native Hawaiian Government. S. 2899, § 7(d)(2)(A).
The racially exclusive constitutional convention and electorate could choose to expand the definition of Native
Hawaiian beyond the racial definition in the bill.
219
Id.
, § 9.
220
S. 746, introduced April 6, 2001. On May 16, 2001, the House Natural Resources Committee amended the original House
bill, H.R. 617, to substitute the language of S. 746 and approved that version. Hawaiian Bill takes first step in House,
H
ONOLULU
A
DVERTISER
, May 16, 2001, http://the.honoluluadvertiser.com/article/2001/May/16/br/br03p.html. House
Report 107-140. On July 24, 2001 the Senate Indian Affairs Committee approved S. 746. U.S. Senate to Consider Akaka Bill,
H
ONOLULU
S
TAR
B
ULLETIN
, July 24, 2001, http://starbulletin.com/2001/07/24/
news/story1.html. The provisions defining the process for creating the Native Hawaiian governing entity may have been
deleted to make it less evident that that entity would be created by an exercise of congressional power subject to the Constitution.
221
S. 746, § 6(b)(2)(A)(iii); § 8(b). The definitions of Native Hawaiian, indigenous, native people, and aboriginal,
indigenous, native people remain the same as in S. 81. S. 746, §2(1), (4), (6).
222
S. 746 § 7.
VOL. V NO. 13
THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
37
Because there is no detail about how the Native Hawaiian governing entity is to be organized,
several organizations could claim the title.
223
That would force the Secretary of the Interior to choose
a government for Native Hawaiians by any method she thinks appropriate.
224
Thus, any governmental
authority exercised by the new government would be derived from federal law and a decision of a fed-
eral official. The bill does not say whether the Native Hawaiian governing entity chosen by the
Secretary will be able to exercise governmental authority over all ethnic Hawaiians or only on those who
voluntarily join it. This creates the possibility that some people might be forced to accept the authori-
ty of the Native Hawaiian governing entity over them based solely on their race.
S. 746 would also create a troublesome loophole: under § 6(b)(2)(D), if the Secretary does not certi-
fy the organic documents of a putative Native Hawaiian governing entity within 90 days of its appli-
cation, then the certification shall be deemed to have been made. Any organization claiming to be the
Native Hawaiian governing entity which is not so certified by the Secretary could invoke this provision
to claim that the Secretarys inaction has effectively certified it as the Native Hawaiian governing enti-
ty. This could be a fruitful source of litigation among numerous claimants and the federal government.
These bills (and any other plan based on creating an analog to an Indian tribe) all suffer the same
fatal constitutional defect as did OHAs voting scheme: they are racially discriminatory and violate the
Fifteenth Amendment. The Fifteenth Amendment expressly applies to the United States, just as it
applies to the states.
225
Federal governmental action is clear: the new government would be defined in
a federal statute and federal regulations, paid for with federal money, and its creation would be man-
aged by a federal agency. The definition of Native Hawaiian in terms of ancestry tracing back to
inhabitants of Hawai`i in 1778 is the same racial classification that the Supreme Court detected in the
OHA statutes.
226
That racial classification would be used to determine a voting roll for elections or an
223
S. 746 avoids an express racial limitation on who could be a citizen of the Native Hawaiian governing entity. That per-
mits an argument that the entity would not necessarily be racially exclusive. However, it also creates the possibility that any
group of ethnic Hawaiians could create a Native Hawaiian governing entity with a citizenship restricted in any way they
please. The bill provides that when the duly elected officers of the Native Hawaiian governing entity submit the organic
governing documents of the Native Hawaiian governing entity to the Secretary of the Interior, the Secretary is to review
those documents and determine whether they establish the criteria for citizenship in the native Hawaiian governing entity
and whether they were adopted by a majority vote of the citizens of the Native Hawaiian governing entity. S. 746, §6(b).
There is no requirement that the documents creating the native Hawaiian governing entity have been adopted by a major-
ity vote of ethnic Hawaiians or any group other than the group specified in the documents themselves. Mutually antagonis-
tic sovereignty groups may organize several contending Native Hawaiian governing entit[ies]. Any two ethnic Hawaiians
could form a group, draft organic governing documents which specify that citizenship is limited to themselves, vote for those
documents, elect themselves officers, and then submit the documents to the Secretary, who would be required to certify that
the documents do indeed specify a rule of citizenship and have been adopted by a majority of the citizens so defined. Other
groups might form that included among their citizens persons who are not ethnic Hawaiians.
224
S. 746 refers to
the
Native Hawaiian governing entity (emphasis added), apparently contemplating that there will be
only one such entity. However, the bill gives the Secretary no guidance as to how to choose which one of several con-
tenders is to be granted governmental powers, including the power to negotiate with the federal and state governments for
land and other assets. The bill provides for the Hawai`i state legislature to support[] the recognition of a Native
Hawaiian governing entity, §6(b)(2)(B), but does not require the legislature to act. Rather, the bill provides that if the state
legislature does not act within 90 days, the Secretary will be deemed to have certified that the legislature endorsed groups
that submit organic documents in the proper form. S. 746, §6(b)((2)(D). The certification that organic documents have
been filed in proper form is distinct from the certification of legislative endorsement. More than one group could quali-
fy for either or both certifications. Thus, in the likely event that there is more than one contending candidate for Native
Hawaiian governing entity, the Secretary of the Interior, could exercise discretion to choose a government for Native
Hawaiians. The Senate Committee Report approving S. 746, Report S 107-66 at 43, states that the Committee on
Indian Affairs does not intend that the State of Hawaii have any role in determining the Native Hawaiian governing enti-
ty that is to be recognized by the United States.
225
The Fifteenth Amendment is binding on the National Government, the States, and their political subdivisions.
Rice
,
528 U.S. at 498.
226
Id.
, 528 U.S. at 514-16.
38
HAWAII BAR JOURNAL
VOL. V NO. 13
initial group of voters who can participate in the creation of the new government. Therefore, like the
OHA statutes, it denies the right to vote on account of race, contrary to the Fifteenth Amendment. The
possibility that the racially exclusive electorate might subsequently choose to adopt a constitution that
broadens the franchise does not save the racially discriminatory rules for the elections that initiate and
define the entire process.
227
The Constitutions requirement that elections be open to all without regard to race cannot be avoid-
ed by analogizing ethnic Hawaiians to an Indian tribe and invoking Congresss power under the
Commerce Clause to regulate commerce with Indian Tribes.
228
Both the State of Hawai`i and OHA
argued that analogy in their briefs in
Rice
and the Supreme Court rejected it.
229
As the Supreme Court
pointed out in
Rice
, an Indian tribe can impose an ancestry restriction on voting because various tribes
retained
some elements of quasi-sovereign authority, even after cession of their lands to the United States
and that retained tribal authority relates to self-governance.
230
Therefore, [i]f a non-Indian lacks a
right to vote in tribal elections, it is for the reason that such elections are the internal affair of a quasi-
sovereign
231
government that was not created by the federal government or by a state but predates con-
tact with non-Indians.
232
What is essential is a government and distinct political community with a con-
tinuous existence dating back so far that they does not derive their quasi-sovereign status from the
United States. A group of Indian individuals that lacks such a government and continuous political com-
munity is not a tribe, even if its members can claim a common descent.
233
Because Indian tribes are gov-
ernmental entities that are not creatures of the federal or state governments, the federal Constitution gen-
erally does not apply to them.
234
By contrast, the United States, like the states, is constitutionally barred
from authorizing racial discrimination in voting.
235
In
Rice
, the Court rejected the analogy between Indian
227
The Fifteenth Amendment applies to referenda about public policies as well as to election of candidates; it bars dis-
crimination in elections to determine public governmental policies or to select public officials, national, state or local.
Rice
, 528 U.S. at 514 quoting
Terry v Adams
, 345 U.S. 461, 467 (1953).
228
U.S. Constitution, Art. I, § 8, clause 3, gives Congress power, To regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes. The committee reports of the Indian Affairs Committee, Sen. Report
106-424 at 21-34 (September 27, 2000), and S. Report 107-66 at 21-34 (September 21, 2001) rely on Congress power
over Indian tribes under the Commerce Clause as the constitutional power supporting the bill.
229
Rice
, 528 U.S. at 517-22.
230
Id.
528 U.S. at 518 (emphasis added).
231
Id.
528 U.S. at 520.
232
See
,
Montoya v. United States
, 180 U.S. 261, 266 (1901), defining an Indian tribe as a body of Indians of the same or
similar race,
united in a community under one leadership or government
and inhabiting a particular, though sometimes ill-defined
territory. (Emphasis added.) In
United States v. Wheeler
, 435 U.S. 313, 322-23 (1978), the Supreme Court held that because
powers of Indian tribes are
inherent powers of a limited sovereignty which has never been extinguished,
tribes and federal gov-
ernment are dual sovereigns that can both prosecute an Indian without violating the constitutional prohibition on double
jeopardy. (Emphasis in original). By contrast, a territory is a federal creature that cannot prosecute a defendant who has
been prosecuted by the United States.
Id. See, Atkinson Trading Co. v. Shirley
, -- U.S. , 121 S.Ct. 1825, 1830-31, 149 L.Ed.
2d 889, 896-99 (2001) (tribes surviving inherent sovereignty as a domestic dependent nation is generally is limited to its
members). Under the Department of the Interior regulations governing recognition of Indian tribes, an applicant orga-
nization must proved that it has maintained political influence or authority over its members as an autonomous entity
from historical times until the present. 25 C.F. R. § 83.7(c). Historical times are defined as times going back to the first
sustained contact with non-Indians. 25 C.F.R. § 83.1.
233
Miami Nation of Indians of Indiana, Inc. v. United States
, 2001 U.S. App. LEXIS 13277, *19 - *20 (7th Cir. 2001).
See Montoya
v. U.S.
180 U.S. at 266 (tribe is community united under one leadership or government);
Worcester v. v. Georgia
, 31 U.S. 515,
559 (1832) (tribes are distinct independent political communities). A tribe that ceases to maintain political unity under
a distinct tribal government ceases to be a tribe and its former members have no special status different from other citi-
zens.
Miami Nation of Indians of Indiana, Inc. v. U.S.
;
Worcester v. Georgia
, 31 U.S. at 593 (MLean, J. concurring); s
ee Mashpee
Tribe v. Secretary of the Interior
, 820 F.2d 480, 482-83 (1st Cir. 1987);
Mashpee Tribe v. New Seabury Corp.
, 592 F.2d 575 582-87
(1st Cir. 1979)
234
C
ANBY
, A
MERICAN
I
NDIAN
L
AW
, 327-28 (1998);
see Talton v. Mayes
, 163 U.S. 376 (1896) (tribe not limited by Fifth
Amendment to US Constitution when dealing with its members).
235
Fifteenth Amendment, § 1;
Rice
, 528 U.S. at 519-20.
VOL. V NO. 13
THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
39
tribal elections and race-based voting laws enacted under the Constitution.
236
Like any other govern-
mental agency, an agency under the authority of state or federal legislation for an Indian group would
be bound by the constitutional requirements of equal protection.
237
The lack of any historical precedent for a Hawaiian Indian tribe is fatal to the Indian tribe anal-
ogy. The federal government cannot recognize or restore a Hawaiian tribe because no such tribe has
ever existed. Neither ethnic Hawaiians nor any other citizens of Hawaii were ever organized as tribes.
238
The Kingdom of Hawai`i was not a tribe, but was the government of an independent country, a for-
eign country from the American perspective. Just as an Indian tribe is not a foreign nation, a foreign
nation is not an Indian tribe.
239
Tribesmen are tribesmen because their parents were tribesmen.
240
However, under the laws of the Kingdom, everyone born or naturalized in Hawai`i was a subject, no
matter where his family came from.
241
Many of the Kingdoms cabinet members, legislators, governors,
and judges were not ethnic Hawaiians; some never even chose to become subjects.
242
By contrast, the
leaders of a tribe are members of the tribe and descendants of members.
243
The annexation of Hawai`i
was not the incorporation into the United States of a tribe with a pre-existing membership restriction
based on ancestry. Under the terms of the Annexation Treaty
244
and Annexation Resolution,
245
the inde-
236
The Court emphasized that OHA is a state agency, not an Indian tribe.
Id.
528 U.S. at 520-21. Discussing
Morton v.
Mancari
, 417 U.S. 535 (1974), a leading case on the scope of Congress plenary power over Indians that was heavily relied
upon by the State and OHA, the Court said that, it does not follow from
Mancari
. . . that Congress may authorize a
State to establish a voting scheme that limits the electorate for its public officials to a class of tribal Indians, to the exclu-
sion of all non-Indian citizens.
Id.
at 520.
Mancari
upheld a hiring preference in the Bureau of Indian Affairs in favor
of enrolled members of federally recognized Indian tribes. In
Rice
, the Court stressed that the hiring preference at issue
in
Mancari
was political rather than racial because it was not directed towards a racial group consisting of Indians,
but rather only to members of federally recognized tribes. 528 U.S. at 519-20 quoting
Mancari
, 417 U.S. at 553, n.24.
237
See Mancari
(analyzing affirmative action program in Bureau of Indian Affairs for conformity with Constitution and
interpreting it as favoring the political class of enrolled members of federally recognized tribes);
Rice
, 528 U.S. at 519-20
(Congress cannot authorize state to establish voting scheme for state office that limits electorate to tribal Indians).
238
As the State of Hawaii acknowledged before the U.S. Supreme Court, the tribal concept has no place in the context
of Hawaiian history. Rice v. Cayetano, Respondent's Brief in Opposition to Petition for Writ of Certiorari (Dec. 29,
1998), p. 18. Jon Van Dyke,
The Political Status of the Native Hawaiian People
, 17 Y
ALE
L
AW
& P
OLICY
R
EVIEW
95 (1998)
(Native Hawaiians have never organized themselves into tribal units). To establish that a group of Indians exists as an
Indian tribe, the group's membership must consist of individuals who descend from a historical tribe.
See
Interior Dept.
regulations defining criteria for tribal status, 25 C.F.R. § 83.7(b)(1), (e). Ethnic Hawaiians are not descended from mem-
bers of a historical tribe because there never was a tribe in Hawaii. They are not a federally recognized Indian tribe.
Price
v. Hawai`i
, 764 F.2d 623, 626-28 (9th Cir. 1985). Ethnic Hawaiians as a group do not meet the criteria for recognition as
an Indian tribe, particularly in that they are not descended from a historical tribe and they are not descendants of the abo-
riginal inhabitants of North America. 25 C.F.R. §§ 83.1, 83.7. For a detailed explanation of why ethnic Hawaiians are
not an Indian tribe for constitutional purposes, see Stuart Minor Benjamin,
Equal Protection and the Special Relationship: The
Case of Native Hawaiians
, 106 Y
ALE
. L.J. 537 (1996).
239
See Cherokee Nation v. Georgia
, 30 U.S. 1 (1831) (Indian tribe does not have standing to bring suit against under original
jurisdiction of Supreme Court because it is neither a State nor a foreign nation but merely a domestic dependent nation);
Montoya v. United States
, 180 U.S. 261, 265 (1911) (Indians tribes do not and never have constituted nations as that term
is used in international law).
240
See
Interior Dept. regulations defining criteria for tribal status, 25 C.F.R. § 83.7(b)(1), (e).
241
See supra
, text at notes 35 - 55.
242
See supra
, text at notes 31 -33, 68, 95.
243
See
25 C.F.R. § 83.7(c) (requiring that the Indian group claiming to be a tribe must prove that it has maintained polit-
ical authority over its members since contact with non-Indians), § 83.7(d) (the groups members must be able to prove
descent from members of a historical Indian tribe).
244
Treaty of Annexation of Hawai`i (1893) in L. T
HURSTON
, F
UNDAMENTAL
L
AWS OF
H
AWAI
`
I
243 (1904).
245
Resolution No. 55 of July 7, 1898, 30 Stat. 750 (known as the Annexation Resolution or Newlands Resolution).
Some opponents of Annexation argued that the Annexation Treaty could not constitutionally be approved by a majority
vote of both houses of Congress but only by a two-thirds majority of the Senate. R
USS
, H
AWAIIAN
R
EPUBLIC
at 324-30.
The question became moot when the Annexation Resolution, which expressly ratified the treaty, won a two-third
majority in the Senate, as well as an even greater majority in the House of Representatives.
Id.
at 340-41, 353. Moreover,
40
HAWAII BAR JOURNAL
VOL. V NO. 13
pendent country of Hawai`i merged into the United States, transferring all its property and sovereign-
ty to the federal government, and leaving no quasi-sovereign behind.
246
If a nation doesnt exist, it
cant be recognized, whether or not it ceased to be a nation voluntarily.
247
Because there has never been a Hawaiian tribe, there is not and cannot be any tribal government
with retained quasi-sovereign powers. Any government created for ethnic Hawaiians would be cre-
ated
de novo
by the State of Hawai`i or the United States. Groups of individual citizens can form vol-
untary political organizations but they cannot invest their private organizations with sovereign public
power.
248
The Organic Act made all of citizens of Hawaii American citizens, at a time when tribal
Indians were generally denied citizenship.
249
Like all American citizens, individual American citizens of
Hawaiian ancestry do not retain any mysterious sovereignty that they could use create a new sover-
eign distinct from the federal and state governments. Like all Americans, they exercise their rights of
self-government by participating in the sovereign federal and state governments. Unlike Indian tribes
on reservations, ethnic Hawaiians do not live in segregated communities that could make and enforce
laws without affecting others; rather, they are integrated with their fellow citizens in the politics and soci-
ety of the State of Hawai`i.
The law creating a Native Hawaiian governing entity would be legislated by Congress. The fed-
eral government and all of its creatures are subject to the Fifteenth Amendments ban on racial dis-
crimination in voting. Congress has no power to manufacture a tribe out of a racial classification by
ipse
dixit
.
250
Congress power under the Commerce Clause to regulate commerce with Indian Tribes is
a special power of Congress over Indian tribes, not a special privilege of Indian tribes.
251
If Congresss
power were cut loose from the requirement of a pre-existing Indian tribal organization, then it would
become a power to discriminate for or against millions of individuals based solely on their racial ances-
try, even if their Indian or ethnic Hawaiian heritage is only 1 possible ancestor out of 500.
252
That
would contradict the principle of equal protection, which applies to the federal government as well as
to the States.
253
All of Congresss powers under the original Constitution are limited by the Fifteenth
VOL. V NO. 13
THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
41
it is now well-established that [t]he President, with the authorization or approval of Congress may make an internation-
al agreement dealing with any matter that falls within the powers of Congress and the President under the Constitution.
R
ESTATEMENT OF THE
L
AW
: F
OREIGN
R
ELARIONS
L
AW OF THE
U
NITED
S
TATES
§ 303(2).
B. Altman & Co. v. United States
,
224 U.S. 583 (1912);
Weinberger v. Rossi
, 456 U.S. 25 (1982). Congresss powers include regulating the territory and prop-
erty of the United States and admitting new States to the Union. U.S. Constitution, Art. IV, § 3. Accordingly, annexa-
tions of territory by joint resolution have been held to be effective in the case of Hawai`i,
United States v. Fullard-Leo
, 331
U.S. 256, 276 (1947) (all of the territory of Hawai`i annexed to U.S., including Palmyra Island), and Texas,
Texas v. White
,
74 U.S. 700 (1868) (Texas annexed by joint resolution, subsequently made a state by another resolution, and cannot quit
the Union).
246
Compare
,
Rice
, 528 U.S. at 520 (Indian tribes can restrict voting to tribal members because the tribes have retained ele-
ments of original quasi-sovereign powers predating American annexation of their territories).
247
Miami Nation of Indians of Indiana, Inc. v. United States
, 2001 U.S. App. LEXIS 13277, *19 (7th Cir.) (applying same prin-
ciple to tribe when its governmental organization lapsed).
248
By contrast, a tribe must be something more than a private, voluntary organization.
Mashpee Tribe v. New Seabury Corp.
,
592 F.2d 575, 582 (1st Cir. 1979), citing
United States v. Mazurie
, 419 U.S. 544, 557 n.3 (1975).
249
Organic Act, § 4;
compare Elk v. Wilkins
, 112 U.S. 94.
250
See United States v. Sandoval
, 231 U.S. 28, 39-47 (1913) (Congress cannot bring a community or body of people within
the range of its special power over Indians by arbitrarily calling them an Indian tribe);
United States v. Candelaria
, 271
U.S. 432, 439 (1926) (same).
Rice
establishes that the terms Hawaiian and Native Hawaiian are racial classifications
when defined in terms of ancestry. 528 U.S. 515-17.
251
Benjamin,
Equal Protection and the Special Relationship: The Case of Native Hawaiians
, 106 Y
ALE
. L.J. at 586.
252
Rice
, 528 U.S. at 527 (Breyer, J. concurring). Approximately fifteen million Americans can trace part of their ancestry
back to the pre-Columbian inhabitants of the Americas but only about 1.4 million are members of federally recognized
Indian tribes. G. R
USSELL
, N
ATIVE
A
MERICAN
FAQS H
ANDBOOK
, 44 (2000).
253
Adarand Constructors Inc. v. Pena
, 515 U.S. 200, 204 (1995) (same test of strict scrutiny applies to federal race-based pro-
grams as to state race-based programs, including programs that give preference to American Indians, Eskimos, and
Aleuts.). In addition, reading Indian tribe as if it meant members of an ethnic group that lived in America before
Amendment and the Bill of Rights, including the equal protection principle implicit in the Due Process
Clause of the Fifth Amendment.
254
Just as Congress cannot racially segregate school children, it can-
not racially segregate voters by inventing an Indian tribe.
B. All of the People of Hawai`i Are the Heirs of the Kingdom.
All plans for racially exclusive government, whether organized as a state agency, a federal agency,
a tribal government, or a government of an independent country with race-based citizenship, conflict
with the Hawaiian tradition of political inclusion as much as they conflict with the constitutional prin-
ciple of equal protection. From Kamehameha Is appointment of westerners as governors to
Rice
s dec-
laration that [r]ace cannot qualify some and disqualify others from full participation in our democra-
cy,
255
none of Hawai`i's governments has ever restricted citizenship to a single racial ancestry. Except
for OHA before
Rice
, there has never been an elected body with membership and voting rights limited
to a single racial group. The citizens of the Kingdom of Hawaii included everyone born in Hawaii plus
naturalized subjects and denizens.
256
When Hawaii was an independent nation in the international sys-
tem it was, like the United States, a multiracial nation defined by a common citizenship. No ethnic
group of citizens had any special legal status placing its members above their fellow citizens.
For two centuries, the trend in Hawai`i has been toward expanding the numbers of people who
have a say in all parts of their government: from Kamehameha Is near-absolute monarchy to a hered-
itary oligarchy, to an oligarchy open to men with money, to American democracy. Although the
Kingdom was not a democracy by todays standards, political rights were not limited to a particular eth-
nic group or to the lineal descendants of a founding group. Voting was never limited to ethnic
Hawaiians.
257
Decisions about how government land was to be used were made by the people in charge
of the government, and indirectly by the voters. No individual or ethnic group owned the Government
Lands; the government did.
258
No individual subject could have sold or willed a personal share of the
the white men arrived ignores the rule of Indian law that a member of a tribe can voluntarily quit the tribe.
See Montoya
v. United States
, 180 U.S. 261 (members of tribes quit and joined another tribe; their original tribes not responsible for their
subsequent crimes);
Nagle v. United States
, 181 F. 141 (9th Cir. 1911). One can quit a political organization but one cannot
quit an ethnic group.
254
Bolling v. Sharpe
, 347 U.S. 497 (1954) (Congress power to legislate for the District of Columbia is circumscribed by the
equal protection principle implicit in the Due Process Clause of the Fifth Amendment and does not extend to legislation
requiring segregated schools). Congress exercise of its Indian Commerce Clause Power is limited by the Fifth
Amendment.
Hodel v. Irving
, 481 U.S. 704 (1987) (statute barring inheritance of fractionated Indian land allotments uncon-
stitutionally effected taking of Indians property);
Babbitt v. Youpee
, 519 U.S. 234 (1997) (amended version of same statute
also unconstitutional).
255
Rice
, 528 U.S. at 523.
256
See supra
, text at notes 31 - 68.
257
See supra
, text at notes 69 - 110.
258
The Hawaii Supreme Court during the Monarchy repeatedly interpreted the King's 1848 grant of land to the gov-
ernment and the Legislature's acceptance of it as vesting land ownership in the Government alone.
See, In the Matter of the
Estate of His Majesty Kamehameha IV
, 2 Haw. 715 (1864) (interpreting the Mahele between the Crown lands and Government
lands and the Act of June 7, 1848, which accepted the King's grant, as vesting ownership of the Government lands in the
Government and the Crown lands in the King);
Harris v. Carter
, 6 Haw. 195, 201 (1877) (per Judd, C.J.);
Kenoa v. Meek
, 6
Haw. 63 (1871);
Thurston v. Bishop
, 7 Haw. 421, 430 (1888). Statutes passed during the Monarchy confirm this view.
See
Act of July 11, 1851 to Provide for the Appointment of Agents to Sell Government Lands to the People, 1851 Sess. Laws
52, reprinted at 2 R.L.H. (1925) 2196; Act of July 6, 1853 to Amend the Second Section of the Act to Provide for Appoint-
ment of Agents to Sell Government Lands to the People, L. 1853 p. 55, reprinted at 2 R.L.H. (1925) 2197; Disposition of
Government Lands, CC 1859 §§ 39, 46, 47; Cp. L §§. 39, 46, 47, C.L. §§ 166, 174, 175, reprinted in 2 R.L.H. (1925) 2198;
1874 Sess. L. c. 24 (allowing Minister of Interior as agent for the Government to lease sell or transfer land owned by
Government); 1876 Sess. L. c. 44 and 1878 Sess. L. c. 5 (regulating sale of Government land); Act to Facilitate the
Acquiring and Settling of Homesteads. 1884 Sess. Laws c. 45 (regulating sale of government land to the people), amend-
ed by 1888 Sess. Laws c. 54 and 1890 Session Laws c. 85; Act to Determine the Status of the Landings of the Kingdom
42
HAWAII BAR JOURNAL
VOL. V NO. 13
Government Lands to another person; nor could a subject have excluded anyone from any part of the
Government Lands.
259
Nor did ethnic Hawaiians, individually or as a group, have any special legal priv-
ileges to use those lands.
260
Thus, a racially exclusive government for ethnic Hawaiians would not be a
revival of the Hawaiian Kingdom or the independent nation of Hawai`i. Rather, it would be a novel
and unconstitutional creature of the federal or state government.
All of the proposals to create an exclusive group of heirs of the Kingdom defined by ancestry,
including both versions of the Akaka bill, ignore the Kingdoms own laws. To determine the members
of an organization, look to the organizations membership rule. To determine the members of a polit-
ical community, look to its citizenship laws. If one were to apply to people living today the citizenship
laws of the Kingdom of Hawai`i to determine who would be a citizen of a successor of that Kingdom,
then everyone born in Hawai`i would be a citizen and everyone who moved to Hawaii would be eligi-
ble to become a citizen. That is basically the rule for citizenship in the State of Hawai`i. The citizens
of Hawai`i jointly exercise sovereignty
261
by participating in the sovereign governments of the State of
Hawai`i and the United States of America, and so share in decisions about how the land of Hawai`i
will be used.
262
All adult citizens of Hawaii now have the same right to participate equally in the multi-
ethnic state and federal governments that rich men in 1893 had to participate in the multi-ethnic
Kingdom of Hawai`i. No one deserves more than equality. All of the people of Hawai`i are heirs of
the Kingdom and its tradition of political inclusion. The citizens of Hawai`i can say: We are all sov-
ereign now.
and the Rights of the Public Therein, 1892 Sess. Laws c. 44 (granting private persons the right to use government land-
ings).
259
The right to exclude others is the hallmark of a property interest.
College Savings Bank v. Florida Prepaid Postsecondary
Education Expense Board
, 527 U.S. 666, 673 (1999) (right to exclude is hallmark of property interest);
Kaiser Aetna v. United
States
, 444 U.S. 164, 176 (1979) (right to exclude from privately owned former Hawaiian fishpond).
260
A statute enacted at the time that land in Hawai`i was first privatized preserved the rights of tenants of the ahupua`a
to gather specified items in the ahupua`a on public as well as private lands. Act of July 11, 1851, reprinted in L
AWS OF
H
IS
M
AJESTY
K
AMEHAMEHA
III, 98-99 (1851), now codified at Haw. Rev. Stat. § 7-1;
Oni v. Meek
, 2 Haw. 87 (1858). An
ahupua`a is a traditional land division, generally corresponding to a valley from the mountains to the sea. All occupants
and residents of the ahupua`a are tenants of the ahupua`a, without regard to race.
Haalelea v. Montgomery
, 2 Haw. 62,
71 (1858);
Dowsett v. Maukeala
, 10 Haw. 166, 170-71 (1895);
Hatton v. Piopio
, 6 Haw. 334, 335-36 (1882);
Damon v. Tsutsui
, 31
Haw. 678, 687-90 (1930).
Compare Public Access Shoreline Hawai`i v. Hawai`i County Planning Commission
, 79 Haw. 425, 903 P.2d
1246 (1995) (extending gathering rights to other unspecified items but adding a racial restriction to ethnic Hawaiians based
on a provision of the Hawai`i State Constitution, Art. XII, § 7, enacted in 1978, which uses the racial definition of
Hawaiian that was at issue in Rice).
See
Paul M. Sullivan,
Customary Revolutions: The Law of Custom and the Conflict of
Traditions in Hawai`i
, 20 U. H
AW
. L. R
EV
. 88 (1998) (discussing gathering rights under Hawai`i law).
261
Sovereignty has become a controversial term in Hawai`i politics. This article will not spoil sovereignty by defin-
ing it. Words mean what they are used to mean. Because sovereignty is used inconsistently, it can have no single, con-
sistent meaning. Indeed, its vagueness is its value: people who agree on nothing else can agree to use sovereignty as a
slogan and so can appear to agree on substance (until they begin to discuss specifics). If someone could decree a precise
definition, everyone else would abandon sovereignty for something vaguer. Nonetheless sovereignty is not utterly
meaningless. Its varying uses in the current debate are contradictory precisely because they point to contrary proposals
regarding the same subjects. There are two broad themes: individual freedom of choice and collective political power.
Individual freedom of choice encompasses freedoms of thought, expression, religion, and association. It includes the right
to try to learn a culture and a language and so make them your own. The federal and state Constitutions guarantee all
of these rights equally to everyone. U.S. Constitution, First Amendment; Hawai`i State Constitution, Art. I §§ 3 (equali-
ty of rights), 4 (freedom of religion, speech, press, assembly and petition), 6 (privacy) 7 (voting, privileges of citizenship).
See
,
Meyer v. State of Nebraska
, 262 U.S. 390 (1923) (statute forbidding parents to educate their children in foreign language
is unconstitutional).
262
As Justice Breyer noted in his concurrence in
Rice
, 528 U.S. at 525, the land formerly held by the Kingdom and the
Republic is held in public trust for all of the people of Hawai`i, not just for ethnic Hawaiians, and is managed for the pub-
lic by the State government and the federal government.
See
Resolution No. 55 of July 7, 1898, 30 Stat. 750 (known as
the Annexation Resolution or Newlands Resolution) (providing that except as to land reserved for federal use, e.g.
national defense, all land and all revenues from land ceded by the Republic of Hawai`i to the United States shall be used
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THE GROWTH OF CITIZENSHIP AND VOTING RIGHTS IN HAWAII
43
solely for the benefit of the inhabitants of the Hawaiian Islands for education and other purposes); An Act to Provide for
the Admission of the State of Hawai`i into the Union (Act of March 18 1959), Pub. L. 86-3, 73 Stat. 4, § 5(f) (land for-
merly held by the Kingdom and the Republic and transferred by the federal government to the State is to be held in pub-
lic trust); Hawai`i State Constitution, Art. XI, § 1 (public natural resources held in trust by the State for the benefit of the
people).
44
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