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The Progeny of Rice v. Cayetano: A Panel Discussion at University of Hawai'i Law School, And The Journal Articles It Spawned (Discussing The Lawsuits Following After and Based Upon Rice v. Cayetano)



(c) Copyright 2002, Kenneth R. Conklin, Ph.D. All rights reserved


The Rice v. Cayetano decision (7-2) was handed down by the U.S. Supreme Court on February 23, 2000. Although the outcome was generally expected, it nevertheless caused a firestorm of political activity in Hawai'i.

To read the decision itself, and learn about the political activity it immediately generated, see
http://www.angelfire.com/hi2/hawaiiansovereignty/ricevcayetano.html

To read about the multi-year attempt to have Congress over-rule the Supreme Court's decision by passing legislation to create a phony Indian tribe, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/OpposeAkakaBill.html

The Rice v. Cayetano decision spawned several lawsuits, as civil rights activists who agreed with the decision tried to extend its application to related issues. The Rice decision directly dealt only with the right to vote for OHA trustees, but common sense suggested that the decision should also apply to the right to run as a candidate for that same office.

Thus, the first "son of Rice" was the Arakaki #1 lawsuit that made it possible for all qualified persons regardless of race to run for OHA trustee. That lawsuit reached a successful conclusion in time for the election of November, 2000. For legal documents in that case, including the appeal to the 9th Circuit, see
http://www.angelfire.com/hi2/hawaiiansovereignty/arakaki.html

To read about the candidacy, newspaper articles, and views of the first non-Hawaiian ever to run for OHA trustee, who was a plaintiff in Arakaki #1, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/ohacandidacy.html

The Rice decision was based only on the 15th Amendment. However, in reaching its decision the Court had explicitly stated that "Hawaiian" and "native Hawaiian" are racial categories and not political categories; thus, civil rights lawyers felt it should be logical to extend the decision to challenge Hawaiian racial entitlement programs under the equal protection clause of the 14th Amendment. The "Mancari doctrine" which allows the Bureau of Indian Affairs to give hiring preferences to enrolled members of Indian tribes, thus providing an exception to the 14th Amendment, should not be applicable to OHA nor to Hawaiians. Thus two more children of Rice were spawned, commonly known as the Carroll case and the Barrett case. However, both these progeny were stillborn, as Chief Judge Ezra of the U.S. District Court in Honolulu ruled that the plaintiffs lacked standing because they had not applied for racial entitlement benefits in a timely manner and/or had not suffered any personal harm that would be in the court's power to remedy.

Following Judge Ezra's dismissal of the Carroll and Barrett cases, a new "taxpayer" lawsuit was filed against OHA and DHHL on behalf of a multiracial group of 16 plaintiffs, including three Hawaiians. This fourth child of Rice, known as Arakaki #2, was born alive, having survived the "standing" challenge. To read some informal explanations and some of the legal documents in Arakaki #2, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/arakaki2ohadhhl.html

On April 18, 2002 a panel discussion on "Rice and Its Progeny" was held at the University of Hawai'i, William S. Richardson School of Law. The Asian-Pacific Law and Policy Journal, published by the University of Hawai'i Press, subsequently included a collection of six articles on Rice and Its Progeny, in Volume 3, Issue 2, Summer, 2002. That issue of the journal, and its articles, are made available below.

But first, some comments are in order regarding the political climate at the University of Hawai'i as illustrated by the way the panel discussion and the collection of articles was managed.

The University of Hawai'i has an overwhelming bias toward the left of the political spectrum. This bias is especially virulent regarding the issue of Hawaiian sovereignty and Hawaiian racial entitlement programs. Since its founding, the Center for Hawaiian Studies has served as a propaganda factory, churning out hundreds of ethnic Hawaiians, and a few non-Hawaiians, uniformly rabid in their pro-sovereignty political activism. CHS sponsors workshops, lectures, performances, TV programs, etc. designed to stir up emotions. The curriculum includes nothing from an opposing viewpoint, except an occasional snippet selected for ridicule.

Other departments at UH have professors heavily dependent upon the Center for Hawaiian Studies to provide student enrollment in specialized courses and validation for research contracts, collaborative projects, and student internships, including the departments of history, political science, sociology, anthropology, ethnic studies, and urban and regional planning; and the law school and medical school. Large federal and state grants and contracts bring in money earmarked for Native Hawaiian projects and sometimes racially earmarked for Native Hawaiian students.

Nobody who disagrees with the party line can possibly receive a faculty appointment in any of these departments. And aside from permanent or full-time faculty appointmenmts, nobody who disagrees with the party line has ever even been invited to speak in any class lecture or panel discussion in the Center for Hawaiian Studies or in any of its collaborative departments. Such opponents are available who have advanced academic and law degrees, have published both polemical and scholarly articles; and one has published a significant book on Hawaiian history and is a great-grandson of an early missionary to Hawai'i and a grandson of a leader of the overthrow of the monarchy. It is true that two attorneys mentioned below (Patrick W. Hanifin and Paul M. Sullivan), who oppose racial separatism and the Native Hawaiian Recognition bill, have occasionally taught courses at UH Law School; but the focus of their courses was on other legal issues where a professor's lectures would not be expected to directly challenge the core doctrines of the sovereignty activists. Those core doctrines go completely unchallenged at UH. Courses directly related to those core issues taught in other departments (history, anthropology, political science, law, etc). are all taught by professors who stick to the party line in their selection and interpretation of course content, and who are then rewarded by having their class enrollment (and job security) significantly boosted by students majoring in Hawaiian Studies.

This complete exclusion of opposing views is a serious violation of academic freedom and an impediment to quality education. Thus, UH and its satellite community colleges are a well-oiled Hawaiian sovereignty propaganda machine with very few squeaky wheels. A major controversy erupted at UH Manoa in Fall 2002 when the author of this website, Ken Conklin, taught a non-credit series of 6 two-hour lectures on "Hawaiian Sovereignty: An Alternative Viewpoint." A strong effort was made to intimidate staff and students into cancelling the course before it could be taught. The course was rescued only by the bravery and persistence of staff and students, aided by newspaper articles and an editorial criticizing the lack of academic freedom at UH and the failure of UH administrators to uphold it. For a large webpage on the lack of academic freedom at UH on issues related to Hawaiian sovereignty, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/uhacafree.html

The panel discussion on Rice and Its Progeny at UH Law School was yet another example of political propaganda rather than balanced scholarly inquiry. All three panelists were outspokenly hostile to the Supreme Court's decision in Rice v. Cayetano. All three panelists viciously attacked the four Rice progeny cases as being part of a racist conspiracy to undermine the civil rights or "indigenous rights" of Native Hawaiians. Although the panel was held at the UH Law School, its three members included only one junior member of the Law School faculty, one Hawaiian attorney who is a rabid political activist and recent OHA trustee, and one attorney from Idaho who is active in litigation on behalf of Indian tribes. The panel presentation, like so many other sovereignty rallies disguised as panel discussions at UH, was videotaped for future use in UH courses and perhaps for cable television broadcast.

Conspicuously missing from the panel, but sitting uninvited in the audience, was Mr. Patrick W. Hanifin. He was specifically not invited to serve on the panel, even though he is a graduate of Harvard, lives in Honolulu, is a partner in his law firm, has published scholarly articles in legal journals over a period of 20 years, and served as an attorney of record in three of the four Rice progeny cases (Arakaki #1, Barrett, and Arakaki #2). Someone at the Law School had informed him about the panel discussion, asked him to attend, and asked him to contribute a paper responding to the panelists in order to provide just a bit of balance to the published collection of articles. Another distinguished Honolulu attorney, Paul M. Sullivan, who opposes the Native Hawaiian recognition bill (also known as the Akaka bill), was also invited to write an article for balance.

Then, perhaps fearful of too much balance, an Associate Professor at the UH Law School was asked to write an article to balance the balancers. Professor Chris Ijima's published articles include such balanced titles as "Race over Rice ... Twenty-First Century Endorsement of Nineteenth Century Imperialism in Rice v. Cayetano", and "The Colonizer's Story: The Supreme Court Violates Native Hawaiian Sovereignty -- Again" published in the distinguished "Colorlines" magazine. Although Professor Ijima is the most senior faculty member represented in the series of articles, he makes a stunningly ignorant and incorrect statement falsely describing plaintiff Patricia Carroll in the Arakaki lawsuits as the wife of John Carroll of the Carroll lawsuit: "Shortly after the Barrett and Carroll dismissals, yet another case was filed contesting the constitutionality of OHA, the HHC, and the Department of Hawaiian Homelands (“DHHL”) by a group of “taxpaying citizens” of Hawai`i, including the wife of John Carroll, the original plaintiff in the Carroll lawsuit." (Ijima, page 6; see below).

Anyone who reads the articles in the Asian-Pacific Law and Policy Journal will easily recognize the superior scholarship and legal analysis of Patrick W. Hanifin and Paul M. Sullivan; especially when their work is held up for comparison against the polemical diatribes of the two UH Law School professors, the former OHA trustee, and the Indian lawyer from Idaho.

Here is Patrick W. Hanifin's article:
http://www.angelfire.com/hi2/hawaiiansovereignty/hanifinaplpj070102.pdf

Here is Paul M. Sullivan's article:
http://www.angelfire.com/hi2/hawaiiansovereignty/sullivanaplpj070102.pdf

And here are the also-rans:
http://www.hawaii.edu/aplpj/3/July2002artindex.html


(c) Copyright 2002 Kenneth R. Conklin, Ph.D. All rights reserved


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Email: ken_conklin@yahoo.com