The Yale Law Journal

June 2020

Colonizing History: Rice v. Cayetano and the Fight for Native Hawaiian Self-Determination

Legal HistoryCritical Race TheoryConstitutional Law

abstract. Rice v. Cayetano involved a challenge to the voting qualifications for Hawai‘i’s Office of Hawaiian Affairs (OHA). Created during the 1978 Hawaiian Constitutional Convention, OHA manages lands held in trust for Native Hawaiians. To ensure OHA was representative of its constituents, voting for OHA trustees was initially restricted to Hawaiians—persons who had one ancestor in Hawai‘i in 1778. In Rice, the Supreme Court held that OHA’s voting restriction impermissibly used ancestry as a proxy for race in violation of the Fifteenth Amendment.

This Comment sets out the history of OHA, which the Supreme Court crucially omitted in Rice. Using contemporary newspaper accounts and archival documents, I show that the creation of OHA was the direct result of the Hawaiian land and sovereignty movements of the 1970s. The idea to create OHA emerged from grassroots sessions in which Hawaiians came together to consider a path to self-governance. From the beginning, Hawaiians did not understand OHA as simply a state agency but rather as an initial step toward Native Hawaiian self-determination.

Recognizing the origins of OHA calls into question the Court’s decision to frame Rice as a case of racial discrimination and to evade the more complex question whether Native Hawaiians constitute a political community entitled to electoral self-governance. On the twentieth anniversary of Rice, the time is ripe to reconsider the historical account that underpinned the Supreme Court’s opinion.

author. Yale Law School, J.D. 2020. Many thanks to Gerald Torres and John F. Witt for their thoughtful feedback. Thanks also to the editors of the Yale Law Journal—especially Briana M. Clark—for invaluable editing assistance.