Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 11, 1 November 1999 — Notes from the Rice hearing [ARTICLE]

Notes from the Rice hearing

Editor's note: Thefollowing is an unofficial draft of questions and comments directed by justices of the Supreme Court to the attorneys in Rice vs. Cayetano. It does not represent afull and accurate transcript of the hearing, but it is published below so that Ka Wai Ola readers might have an idea of the range of areas addressed by the justices. Text in parentheses is editorial eommenl intended to clarify the context of or references in the justices ' remarks. īhe official transcript of the entire proceeding is expected to be available on Westlaw Nov. 1. Questions/comments directed at Harold "Freddy" Rice's attorney, Theodore Oison: Justice 0'Connor: Morton vs. Mancari (sustaining the Bureau of Indian Affairs' preference for hiring Indians) deserves some comment. In that case, there was a preference for Native Americans. Is it possible that the Congress or the state could treat Native Hawauans as Native Americans? Justice Stevens: If an Indian preference included some people who are Indians but not tribal members, would it be unconstitutional? Justice Scalia: Is it unconstitutional for Congress to give special permission to Indians who are not organized as a tribe to conduct casino gaming. To individualize Indians who are not tribal members? Justice Souter: What about Alaska Natives? They are not organized as tribes. Justice Ginsburg: Hawaiians were not organized as tribes but as a kingdom. The U.S. had a large hand in destroying their sovereignty. The "remorse" resolution acknowledges that. If it works for Native Americans, I don't understand why it doesn't work for native people who were stripped of their sovereignty. (Rice's attorney rephed that the lands weren't "taken" from the people because they were ceded right back upon annexation.) Justice Scalia: Are you contradicting a congressional resolution? Justice Stevens: Your theory is that if Native Hawaiians represent 20 percent of the state's population, then 80 percent of the state's citizens are the victims of this discrimination that is being practiced by the state? Justice Kennedy: Could Congress have treated with the Hawaiian government, given that they weren't a tribe? Justice Stevens: Suppose today we approach an island where the people are all farmers and there is no government, ean we treat with them and extend benefits to them? (The response was that Congress has no constitutional authority to do so.) Would it be constitutional if we extended benefits to all 14-year olds and gave them the right to vote at age 14? Justice Kennedy: Would the U.S. have the Fourteenth Amendment power to treat with these people (the farmers from Justice Steven's hypothetical)? Would we have the power to deal with them at all? Justice Rehnquist: The government has the power to enhanee territory. Questions/comments directed at the State's attorney, John Roberts: Justice Rehnquist: What indication is there that Congress congressionally recognized the status of OHA? What did Congress do? What did Congress do to ratify the statute at issue here? Was this all done under the Indian Commerce Clause power?

Justice Scalia: The Constitution says "Indian tribes." Do we have the power to regulate commerce with Native Americans who do not reside on reservations? Do those who have moved to the cities remain "wards" of the United States? Is the source of constitutional authority the "tribal" character of Indians? The only other provision of the Constitution that I know of that uses the term "Indians" rather than "Indian tribes" is the Fourteenth Amendment's reference to "excluding Indians not taxed." (He then read from Felix Cohen's " Handbook of!ndian Law.") There is a clear tradition of treating Indians differently from tribes. Justice Souter: Mancari is more restrictive. It emphasizes the "organized" character of tribes. What is meant by "Indian tribes" under the Indian Commerce Clause? Is race a necessary condition? Justice Kennedy: Suppose we create a trust in Oklahoma whieh was for the benefit of those who could vote in 1910. We would know that the trust was hmited to whites, because they were the only ones who could vote in 1910. Justice Scalia: Your answer to my casino hypothetical is that the Congress could deem people to be a tribe and extend benefits to them. Is Maneah based on the premise that we treated their ancestors shamefully, whieh we did, and that now we should rectify those wrongs? Justice Rehnquist: What if Congress were to set up a special trust for residents of what was then the Mexican territory, whieh was populated primarily by Hispanics? Do we have the constitutional power to do that? How do you define "native inhabitants"? Justice Scalia: There is aracial distinction embedded in the Constitution between Indian tribes and the European settlers. Justice 0'Connor: Don't we have to deal with what Hawai'i has done in setting up a voting scheme, not what powers the federal government has? Does the state statute provide a distinction or a benefit whieh violates the Fifteenth Amendment? Would it violate a congressionally delegated power, or anything Congress has done if the vote was opened up to others? Would it breach the trust? Justice Rehnquist: Is OHA an independent sovereign in Hawai'i? Justice Kennedy: OHA does mueh more than that. It deals with all Native Hawaiians. Justice Breyer: One Hawaiian ancestor entitles a person to voting rights in the OHA eleehon. But there are two trusts, and the bulk of the money goes to those who are less than 50 percent Native Hawaiian. Would it be all right if the money went just for those of 50 percent blood and not all Hawaiians? Justice Kennedy: The state's scheme is not limited to one person, one vote. Justice Rehnquist: Public Law 280 doesn't support you at all. It doesn't authorize a state to develop special laws. Justice Scalia: Assuming the Indian Commerce Clause includes Indians generally, on what basis ean the Congress delegate its Indian Commerce Clause responsibilities to a state? Can it delegate the treaty power? Public Law 280 (extending to certain states criminal jurisdiction over certain enumerated crimes committed on Indian lands) is not a basis for a state to prescribe limitations on voting or fashion special rules for a group. P.L. 280 is not a delegation of federal power. It doesn't authorize a state to impose voting

limitations. Justice 0'Connor: The state could not violate the First, Fourteenth or Fifteenth amendments under a delegation of federal authority. Questions/comments directed at Ed Kneedler, arguing for the Solicitor General as amicus curiae: Justice Souter: Is it your position that we cannot decide this case without acknowledging Congress' power to determine Native Americans under the Indian Commerce Clause? Justice Scalia: Was the federal setting aside of 200,000 acres of land in Hawai'i intended to be a land base for Native Hawaiians to live on? Only Native Hawaiians to hve on? (Kneedler had analogized the Hawaiian Homes Commission Act set-aside with Congress' authority to estabfish reservations.) Justice Kennedy: Are there other leases of that land authorized? Not just for Native Hawaiians? For hotels? Justice Scalia: You are not saying that the Hawaiian Home Lands are run like an Indian reservation, are you? Justice Breyer: How do you extend "Indian-ness" to those with one ancestor ten generations ago? That could include all of us. Justice Scalia: There are a lot of groups in the country like Native Hawaiians - and if you add one more factor of "indigenous-ness," then you ean discriminate? Justice Rehnquist: Is the only source of eongressional power the Indian Commerce Clause? Does Sandoval suggest that if there were no Indian Commerce Clause, Congress would still have the power to deal with Indian tribes? (According to OHA board attorney Sherri Broder, in Sandoval, the court had deferred to the congressional power to deal with indigenous people under the Indian Commerce Clause whether or not the indigenous fived in tribes or not.) Justice Scalia: So your answer to my casino hypothetical is that Congress could authorize a group of Indians who are not organizcd as tribes to conduct casino gaming? Justice 0'Connor: Congress" power doesn't answer the question for us. Funds whieh include tax dollars appropriated by state legislators are at issue. Justice Scalia: Are you saying that Native Hawaiians are not fully integrated into society? (Kneedler had suggested that Congress has often dealt with individual Indians and the court sustained that exercise in Seber. According to Broder, in Seber court said the United States, after taking their land, had the power and duty to exercise protection and care over dependent Indian communities.) Justice Kennedy: Any Native Hawaiian? One-forty-eighth would do? Justice Scalia: Congress has said one-ninety-fifth will suffice. Questions to Attorney 01son on rebuttal: Justice Ginsburg: This case is special, unusual. How many federal and state statutes would be affected if we were to decide the case as you wish to? Justice Stevens: Is there any statute relative to the Fifteenth Amendment? Justice Ginsburg: It's the same for Alaska Natives. Are you saying that everything is up for grabs? ■