THE SUPREME COURT heard arguments last week in the case of Rice v. Cayetano, a constitutional challenge to a voting scheme in Hawaii overtly based on an ethnic criterion. The state of Hawaii administers trusts for the benefit of the native Hawaiians whose ancestors inhabited the islands before European explorers arrived in 1778. The office that administers those trusts is headed by a board of directors elected only by native Hawaiians. In other words, one's ability to vote in certain statewide elections in Hawaii is contingent on one's race, though the 15th Amendment to the Constitution specifically insists 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." Both a district court and the U.S. Court of Appeals for the 9th Circuit upheld this arrangement. Both are wrong and should be reversed.
The lower courts held -- and Hawaii and the Clinton administration now both argue -- that Hawaiian natives are analogous to Indian tribes and that the Constitution, for this reason, permits a certain latitude in the electoral system. Restricting the voting populace to indigenous Hawaiians, the argument goes, is not a racial restriction but a simple requirement that only beneficiaries of the trusts be eligible to vote for their managers.
The history of Hawaii and the eradication of its sovereignty do bear similarity to the history of native populations on this continent. The notion that Hawaiian natives properly enjoy a special relationship with the federal government flowing out of their dispossession a century ago seems reasonable enough. Indeed, the trusts themselves may well be justifiable. But this does not make them Indians for constitutional purposes. They are not organized or recognized as tribes, and their relations with the federal government are not, as with tribes, governed by treaties. Nor would the Hawaii voting scheme be permissible even were Hawaiian natives properly considered Indians. While a tribe can certainly hold tribal elections in which only its members vote, a state could not properly hold an election for a state office in which Indians alone were granted the franchise.
It is important to separate the question of the legitimacy of the trusts from the question of whether the state offices that oversee them can be elected by one group of a state's voters selected according to race. The 15th Amendment is a very bright line. The Supreme Court would be mistaken to dull that line by permitting a state to open the door even a crack to racial categories in voting.