Race over Rice:: Binary analytical boxes and a twenty-first century endorsement of nineteenth century imperialism in Rice v. Cayetano

The Rice v. Cayetano decision in which the Supreme Court struck down the voting requirement for Trustees of the Office of Hawaiian Affairs (OHA) that restricted eligible voters to only those of Hawaiian ancestry is an example of how apparently "neutral" legal decision making disguises intensely political aims. The narrative of the decision reflects not only a deep misunderstanding of Hawaiian history, but also constructs a too-familiar narrative of how Westerners "civilized" an indigenous people. Moreover, the Court's narrow and formalist approach to racial issues dictated a rigid binary analytical structure which distorted not only the claims of the Hawaiian people, but their very identity. In essence, they were forced to choose between whether they were a racial grouping but not a political entity, or that they were a political entity but not a racial grouping when, in fact, they may be considered both. The analytic premise of the Article is that strict scrutiny analysis is inappropriate when dealing with many issues concerning Hawaiians-even if they are a racial grouping-since the harm of which they complain is fundamentally different from the claims of other subordinated racial groupings within the United States. That is, while equal protection strict scrutiny seeks to protect groups excluded from the political and social processes within the United States, Hawaiians are asking for the redress of their loss of sovereignty caused by the United Slates and a remedying of the resulting harm which will, in essence, restore in some way their "separateness" from the United States. Thus, the fundamental inquiry, consistent with the approach taken by other court decisions dealing with the claims of native peoples, must be not whether Hawaiians constitute a "race" and thus are being given a "racial preference" by a particular voting limitation, but whether they as a group have been specifically harmed by the illegal taking of their independence (a fact which the United States Congress itself acknowledged in 1993), and whether the voting limitation is rationally related to the remedying of that harm. The Court's refusal and failure to understand and deal with the nuances of harm and remedy can only have a negative future impact not only on the future claims of indigenous people, but on the American people as a whole and particularly people of color.