Rice v. Cayetano - Oral Argument

Argument of Theodore B. Olson

Chief Justice Rehnquist: We'll hear argument next in Number 98-818, Harold Rice v. Benjamin Cayetano.

Mr. Olson.

Mr. Olson: Mr. Chief Justice, and may it please the Court:

This is a case of ballot box racial discrimination, plain and simple, that violates the two bedrock constitutional provisions that commit our Nation to racial equality.

Petitioner Harold Rice, his parents, his grandparents, his great-grandparents, as well as his children and grandchildren, were born in Hawaii.

His ancestors first arrived in Hawaii in 1831.

He is a citizen of the United States, and a citizen...

Justice Stevens: Mr. Olson, I just want to make one question.

Is it not correct that your case would be precisely the same if your plaintiff were any one of thousands of other voters?

Mr. Olson: It would be, particularly with respect to the Fifteenth Amendment, Justice Stevens.

I make the point about my client's relationship with the State of Hawaii and the Territory of Hawaii because of the arguments that are made by the respondent with respect to the justification for the racial classification under the Fourteenth Amendment.

Justice Stevens: No, but your answer to my question is yes, isn't it?

Mr. Olson: Yes, particularly with respect to the Fifteenth Amendment, but Hawaii prohibits, despite the fact he is a citizen, Mr. Rice from voting in a State-conducted election for State officials who annually distribute millions of dollars of proceeds from State-owned property and money appropriated from Hawaiian taxpayers.

When it comes time to vote in the election for the board of Office of Hawaiian Affairs, it no longer matters that Mr. Rice is a Hawaiian citizen and a Hawaiian native.

In that election, because he has the wrong ancestors he is no longer a Hawaiian, and he may not vote.

The clearest, simplest, and narrowest ground for deciding this case may be found in the Fifteenth Amendment, which declares that no citizen may be denied the right to vote on account of race.

The right to vote, this Court has said, is the essence of a democratic society.

Justice Kennedy: Well, wouldn't a clear, simple way to resolve this case in your favor be to say that the mechanism here is just an overreading of Salyer and James v. Ball, and that it denies one person one vote?

This is a general agency which is involved in housing, health, education, taking general appropriations, and so it just denies one person, one vote.

Mr. Olson: Well, I think that issue was in the case and was withdrawn from the case.

I do agree with you that it violates that provision of the Fourteenth Amendment, but I think it is much easier to say that it denies the right to vote on account of race.

This is a racial determination, and the right to vote is being denied here.

This Court has been particularly scrupulous about holding that there are no exceptions to the Fifteenth Amendment.

Evasions and subterfuges such as grandfather clauses, white primaries, and racial gerrymanders...

Justice Kennedy: But if we were to say it denies one person one vote under Reynolds v. Sims, that would give you the relief you seek.

Mr. Olson: If this Court rules in our favor on that grounds, we of course would be satisfied.

As I say, it has been briefed and argued in this case on the Fifteenth Amendment and Fourteenth Amendment with respect to a racial discrimination.

Hawaii...

Justice O'Connor: You say it was in the case earlier and withdrawn.

Would you explain that?

Mr. Olson: I can't recall the circumstances, Justice O'Connor.

I remember reading something as I was preparing today that that issue was involved in the case, but it was brought as a racial discrimination case, and pursued as a racial discrimination case.

Justice Stevens: May I ask on the racial discrimination point, supposing there is a citizen of Hawaii who has the same racial makeup as the native Hawaiian, he came, however, from Tahiti or some place else, and is a citizen of the State, has exactly the same race as the others, but he's denied the vote.

Would he be denied the vote on account of race?

Mr. Olson: Yes, he would be denied a vote on account of race, because...

Justice Stevens: Even though he's of the same race as those who were allowed to vote?

Mr. Olson: Well, it depends upon... this Court has said repeatedly that the definition of race relates to drawing a line with respect to a person's ancestors.

This is what Hawaii has done, and the reason why they have drawn that line, and they've drawn it on the year 1778, is that is the first date on which a European arrived on a permanent basis on the islands.

There is no question that what Hawaii was attempting to do here was discriminate on the basis of race.

It defines the program's beneficiaries in terms of their race or their blood.

It defines the right to vote in terms of aboriginal peoples, having an ancestor with aboriginal peoples that were there in 1778, and when that definition was adopted the legislature said, make no mistake about it, aboriginal peoples means race.

The Attorney General of the State of Hawaii has issued a formal legal opinion that says racial descent is what is the key to voting in this election.

If you an adopted child of a person, persons that qualify for election, because you do not have the right racial descent you are not qualified to vote.

Justice Scalia: Well, I... even if the Tahitian is of the same race, I mean, the fact that you give special privileges to some people of one race, though not to all people of that race, would not make it any better, would it?

Mr. Olson: I agree completely.

That is... that... racial discrimination doesn't...

Justice Scalia: The thing is, unless you're of that race, you can't qualify.

Mr. Olson: That's...

Justice Scalia: Not everybody of that race may qualify.

Mr. Olson: That's correct, and an interesting example of that is Loving v. Virginia, where the Supreme Court there was dealing with racial discrimination with respect to miscegenation, interracial marriage.

There was a particular definition that allowed certain ancestors, descendants of American Indians to qualify as white persons for that purpose on the grounds that they may have been descendants of Pocahontas.

It is a question of ancestry, which this Court has repeated over and over again, the decision of this Court in College of St. Francis involved the discrimination against an individual because he was of the Arabian race.

Even though he may have looked like other people that were going to be admitted to the faculty...

Justice Breyer: The Twenty-sixth Amendment treats age identically to race in the Fifteenth Amendment, doesn't it?

The words are the same, but age instead of race, so is it unconstitutional... I'm sure it isn't.

I would think it wasn't... to say that every 18-year-old in the neighborhood has to vote for the director of the neighborhood senior services center?

I mean, sometimes you make discriminations, don't you?

I'm going back to the point that they're not being treated on the basis of race, but because they're beneficiaries of a trust.

Mr. Olson: Well, Justice Breyer, the definition ties to race.

The legislature thought it was connected with race.

Justice Breyer: Well, I understand that, but is it your opinion you do have to let every 18-year-old in the neighborhood vote for the board of the senior services center?

Mr. Olson: I think that's a totally different... no, I don't.

Justice Breyer: All right.

Now, once you're down that road, once you're down that road, then I get to where Justice Kennedy began.

I'm not certain what I'm supposed to assume about the characteristics of this.

f it's really just like a trust, I don't see why you can't say the beneficiaries of the trust, and only they, will vote for the trustees.

Mr. Olson: First of all, Justice Breyer, the land was put in trust, and it's not like a bank, a trust in the concept of banks and trustees and beneficiaries.

It was a so-called public trust.

The land is held by the State of Hawaii for all the citizens of Hawaii.

Hawaii has simply decided arbitrarily to set aside 20 percent of the proceeds of that property, plus taxpayer revenue on behalf of people, because they're descended from certain people that lived in the island in 1778.

That seems to me, whatever the law might be with respect to 18-year-olds, as this Court has said, the right to vote, and the right to vote and not being abridged the right to vote on the basis of race, or color, or condition of servitude, is vital to the functioning of the democracy.

And this Court has frequently equated... in fact, the grandfather clauses are a good example, where this Hawaii situation is indistinguishable, in a sense, because it allows people to vote if they have an ancestor that was in the islands in 1778 in the same way that Oklahoma didn't impose a literacy test if you had an ancestor that was permitted to vote in 1866 in Oklahoma.

This situation falls squarely within that limitation.

The word trust is an arbitrary term, and there isn't really any... there aren't any decisions from this Court that say, simply because you call something a trust, if the State of X decides we will provide benefits for people of certain ancestry, suppose they're descendants of people who were in the State of Texas when it was a Republic, if that money is set aside from public funds, and we will call it a trust, and therefore we will justify the discrimination in the voting on the basis of the discrimination in the giving, this Court...

Chief Justice Rehnquist: Mr. Olson, isn't the Salyer case and the Ball v. James case a useful tool for analyzing that very thing?

I mean, is this a special use district, or is it really more like a general governmental agency?

Mr. Olson: It's a very good question, and the respondent has relied upon that case.

You will recall that that case involves a water irrigation district created by the landowners in that area, the funds for which came from the landowners, and the landowners in that very narrow, local irrigation area or water conservation district were the ones that voted as to how that worked.

This is an agency created by the constitution of the State of Hawaii.

It is called a State agency by the Hawaiian supreme court.

The officials on this agency are public officials under the definition of the law of Hawaii.

They give out money that belongs to all of the citizens of Hawaii.

They perform general governmental functions like education, providing benefits for economic advantage, health care, and all of those things, the same sort of general things that were not involved in Salyer, and in fact in the Ninth Circuit, in an earlier case, the Office of Hawaiian Affairs even claimed Eleventh Amendment immunity on the grounds that they were, in fact, the State of Hawaii, so this is... there really is no comparison with the Salyer case on the merits.

In addition, of course, Salyer did not create an exemption for racial discrimination.

It was not a case involving race.

It was not a case involving voting.

Justice O'Connor: Well, I think Mancari deserves some comment, where special provisions and preferences were provided for Native Americans.

Is it the case that Mancari indicates that some preference can be given to Native Americans, at least, by Congress?

Mr. Olson: What this Court, Justice O'Connor, did in the Mancari case is make it very clear that it was analyzing the extent to which Congress had power under the Constitution to act with respect to Indian tribes as quasi-sovereigns under the Constitution.

The Commerce Clause provides the Congress with authority to deal with Indian tribes.

The Court, in the space of a relatively short opinion, about six or seven pages of opinion focusing on that particular issue, used the words Indian tribes, quasi-sovereign tribes, federally recognized tribes, over 20 times to make the point very clearly that... and to use the language or the words of the Court in that case, the preferences granted to Indians, which was a hiring preference in the Bureau of Indian Affairs, not as a discrete racial group, rather as members of quasi-sovereign entities.

The preference relates to a legitimate nonracial goal, because it related to tribes, and this Court...

Justice O'Connor: Is it possible that the Congress and/ or the State could treat Hawaiians as it treats Native Americans...

Mr. Olson: Well, in the first place...

Justice O'Connor: under the Indian Commerce Clause?

Is that possible?

Mr. Olson: No, because the unit that we're talking about, the collection of people that we're talking about in the first place has never been considered or perceived of as a tribe.

As respondent...

Justice O'Connor: Right.

Mr. Olson: states... I just want to make that point if I may.

First, preliminarily, they say the tribal concept simply has no place in Hawaiian history, so we're talking about the possibility of extending the doctrine in a context in which there's no...

Justice Stevens: Is it your view, Mr. Olson... I understand your point about Mancari involving tribes... that if you had the same case as Mancari, but they included within the preferred group some people who are not members of a tribe, would that have compelled a different result, in your view?

Mr. Olson: I think one would have to examine the context of the case, because...

Justice Stevens: The only change in... it's actually exactly the same, except that the preferred group is defined to include some Native Americans who are not tribal members.

Mr. Olson: That seemed to be the clear import of the...

Justice Stevens: I understand.

Is your view...

Mr. Olson: Yes.

Justice Stevens: that if those were the facts, that would be unconstitutional?

Mr. Olson: Yes, and it seems to be the clear import of the case, and then the Court... this Court reinforced that in the Yakima Nation case by saying, the unique status of Indian tribes under... and this is a partial answer to Justice O'Connor's question... permits the Federal Government, not the State government, to enact legislation singling out Indians because of the tribal characteristic, legislation that otherwise might be constitutionally offensive.

Justice Scalia: So then...

You think it would be unconstitutional for Congress to provide that casinos that are otherwise impermissible in certain States can be conducted by Indians who are not members of tribes?

Mr. Olson: I think... well...

Justice Scalia: Suppose they passed a law that said...

Mr. Olson: That... of course, that is not a Fifteenth Amendment case.

That would have to be examined under the Fourteenth Amendment.

Justice Scalia: I understand that, but we're talking about...

Mr. Olson: And, of course...

Justice Scalia: discrimination on the basis of race.

Mr. Olson: And I think that that may raise a serious constitutional question under the Fourteenth Amendment if it was limited to... if the State was...

Chief Justice Rehnquist: Yes.

Mr. Olson: enacted legislation...

Justice Scalia: Well, we have some that allow tribes to run casinos.

Mr. Olson: Yes.

Justice Scalia: If that kind of legislation were expanded to allow any group of American Indians to, whether they're tribal or not to run a casino but nobody else.

Mr. Olson: I'm not sure I'm understanding the question.

Is the... if the...

Justice Scalia: The question's very easy.

Mr. Olson: It's the answer that's hard, perhaps.

[Laughter]

Justice Scalia: The special permission is not given to Indian tribes.

It's given to Indians.

Any Indian can run a casino.

Mr. Olson: I think... I think that that would be unconstitutional, because Congress' power to operate with respect to Indians, as this Court has made clear over and over again, derives from the Indian Commerce Clause or the Indian Treaty Clause, and that has to do with the status of Indian tribes, not as Indian people.

Justice Souter: So if you had Alaska Natives, the result would have to be different?

Mr. Olson: Well, there are... in fact there was a specific distinction between the way Alaska was treated and the way Hawaii was treated when it was entered into the Nation, because there were Indian tribes in Alaska, so to the extent we're talking about people who were not members of tribes...

Justice Souter: Well, that may have been in the Act of Admission or in the statutes, but constitutionally, as I understand your answer both to Justice Scalia and Justice Stevens, constitutionally the answer would have to be different.

Mr. Olson: The answer would be the same to the extent that the people in Alaska were part of a tribe, any tribe.

Justice Souter: No, but they...

Mr. Olson: If they were...

Justice Souter: My question is assuming that they were not organized on the same tribal scheme, the tribal sovereignty scheme that the Indians of the Lower 48 States were, so the result would have to be different.

Mr. Olson: We'd have to make... we'd make the same case there as we would here.

Justice Kennedy: Yes.

Mr. Olson: And...

Justice Ginsburg: Mr. Olson, one part of it I don't understand.

Hawaii wasn't organized into many tribes, but it did... it was a kingdom.

It was a sovereign kingdom, with its language and culture, and even cuisine, and the United States had a large hand in destroying that sovereignty, and indeed Congress passed this Remorse Resolution recognizing that the United States was in large measure responsible for the destruction of the sovereignty of these people.

So if the idea of tribal sovereignty, restoring some of the dignity that was lost as a result of what this Nation did, works for Native Americans, I don't understand why it doesn't also work for people who were a sovereign nation, who were stripped of their sovereignty, whose land was taken without their consent and without any compensation.

The analogy seems to me quite strong.

Mr. Olson: Let me answer that... there are several answers to that, Justice Ginsburg.

In the first place, that when those events occurred, and that was in the 1890's, when the Hawaii constitutional monarchy was replaced with a republic and then became ceded to the United States.

Native Hawaiians, as they are being defined in this case, were less than half the population of that constitutional monarchy.

In other words, there were people that had nothing to do with ancestry in 1778 that were a part of that operation, that country and that area at that time.

Secondly, this business about the lands being taken, the land that was ceded to the United States was land owned by the Government of Hawaii.

It didn't leave the Government of Hawaii.

It was ceded back to the Territory immediately, and immediately when that was done it was made for the benefit of all the inhabitants of Hawaii, so that the land never was taken from any individuals.

To the extent that land was taken...

Justice Scalia: You mean you're contradicting the congressional resolution that said we were guilty?

Do we have to accept that... does... that resolution as an accurate description of history?

Mr. Olson: Of course not, and this Court...

Justice Scalia: Can't Congress make history?

Unidentified Justice: [Laughter]

Mr. Olson: Congress does make history, but Congress, of course, can't change history.

I'm not... we're not accepting everything that's in the so-called Apology Resolution.

What I am saying is, it would make no difference, because it would not have any rational relationship between the arbitrary date established by the Hawaiian Government of 1778 and the dates that those events took place.

That's one of the reasons why I was explaining, in response to Justice Stevens' question, my client has ancestors that go back to 1831.

He had two ancestors that were in the legislature of that constitutional monarchy, so to the extent we're singling out people to be victims, it is not... cannot conceivably be limited to people that have relations in Hawaii in 1778, when, by the way, there was no such thing as the United States.

Justice Stevens: No, but your theory is that about 85 percent of the population of Hawaii are the victims we're talking about.

Mr. Olson: As a matter of fact, the...

Justice Stevens: Is that not right?

Mr. Olson: No.

As it presently stands, the number of people who are Hawaiians, or Native Hawaiians are about 20 percent of the population.

Justice Stevens: So that 80 percent are the victims of the discrimination we're talking about.

Mr. Olson: Yes.

Yes, I'm sorry, I misunderstood your question.

That's correct.

Justice Kennedy: If... assume... it didn't happen, but assume that in 1790 the United States discovered Hawaii, Cook discovered Hawaii.

Could the Congress then have treated with the Hawaiians under the treaty, or the commerce laws?

Mr. Olson: Well, in fact, the United States had treaties with the monarchy of Hawaii.

Justice Kennedy: No, no, I'm talking about before 1810, before Kamehameha.

Mr. Olson: No, because there wasn't a tribal government at the time.

Justice Kennedy: So the United States is simply powerful?

Mr. Olson: Before 18...

Justice Kennedy: Powerless.

It comes into this island in 1790, it can't recognize these people?

Mr. Olson: Well, as I understand it, between 1890 and 19... 1810 there was a civil war going on.

1810 is the date when Hawaii...

Justice Kennedy: But... no.

What I'm trying to probe is the status of these people, and so I'm putting a hypothetical case of 1790, before Kamehameha.

From what you indicated, it seems to me Congress would have no power under the Commerce Clause or the Treaty Clause to deal with these people.

Mr. Olson: It may have had power to deal with the entity.

It may have had power under...

Justice Kennedy: There was no entity.

Mr. Olson: Foreign policy powers to deal with the entity, but we're talking about, and we're talking about a period of time before the Fourteenth and Fifteenth Amendment, which made very clear what our country would do with respect to racial discriminations, and if we pick any date in history after 1778, the Hawaiian population consists of people that are in protected... in the benefited class here, and are not in the benefited class.

And I want to return to Justice O'Connor's question about Indians.

The respondents state at page 2 of their brief that Hawaiians, the Native Hawaiians and Hawaiians here are historically and anthropologically distinct from American Indians.

That's a concession in the case.

It's a concession in the case that they are not tribes.

This group of individuals, however we define them, wouldn't receive recognition by the Federal Government as a tribe, because they have not had a substantially continuous tribal existence.

They haven't functioned throughout history as an autonomous tribal entity.

They haven't had historical political influence as a tribe.

What we have here is a very difficult situation in which an arbitrary date in history is selected out.

What the State of Hawaii and the United States Government are saying here is that because someone is related to someone who is in a part of the United States before it became a part of the United States...

Justice Stevens: Let me ask a question that Justice Kennedy's question prompted.

Supposing today we approach an island that we had previously not any political relationship with, but it's populated by a group of 1,000 people who are just all farmers.

They don't even have a Government.

Could we make an arrangement with that group that you can become a part of the United States and in exchange we give all of you and your descendants a tax exemption, say, or free baseball tickets to the World Series.

Unidentified Justice: [Laughter]

Justice Breyer: Some preference.

Mr. Olson: I don't think so, Justice Stevens.

Justice Kennedy: You don't think...

Mr. Olson: I do not think so, and...

Justice Stevens: Congress would not have the power to make that kind of a deal.

Mr. Olson: I don't see where it would come from in the Constitution.

Secondly, what we have here is, and I'm going to put back into your hypothetical what we have here, which are remote descendants of the people.

Now, let's move forward 200 years.

Justice Stevens: Right, I'm saying, we'll give this to you and all of your descendants.

Mr. Olson: Forever and ever and ever.

Justice Scalia: Right.

Mr. Olson: I don't think that that's consistent at all with the Fourteenth and Fifteenth Amendment to the Constitution, especially if it involved voting.

If it didn't involve voting, we'd only be dealing with the Fourteenth Amendment to the Constitution.

This Court is required, with respect, if we step to the Fourteenth Amendment...

Justice Stevens: And make my hypothetical saying, and your descendants can vote when they're only 15 years old.

Justice Kennedy: That would be the vote.

Mr. Olson: Pardon?

Justice Stevens: To get voting into it, I'd say we give you, a) a tax exemption, and b) the right to have your children vote when they're 14 years old, and all your descendants.

We could not make that...

Mr. Olson: I think that is a discrimination on the basis of ancestry which this Court has said over and over again is a discrimination on the basis of race.

To the extent that there's a Fourteenth Amendment issue that we'll focus on, this Court has said racial classifications, and we don't need to look into motives here, or legislative history, or anything else.

This is a racial classification on its face.

Justice Kennedy: In Justice Stevens' hypothetical and my hypothetical, would the United States have power to pass legislation consistent with the Fourteenth and Fifteenth Amendment, and to make agreements with those people?

Mr. Olson: I think I answered that, and I think the answer is no.

I don't know where the power, that power would come from.

Justice Kennedy: The United States is simply powerless.

That's a...

Mr. Olson: To...

Justice Kennedy: Under the foreign affairs power?

Mr. Olson: Well, to make a distinction among citizens on the basis of race in the voting booth, I think that is precluded by the Fifteenth...

Justice Kennedy: No, the hypothetical is, can they deal with them at all?

Does the United States have power to deal with a people that is not organized?

Mr. Olson: No, I think that... yes.

I think the answer is yes under the foreign policy powers of the United States.

Yes, they can deal with this group of people.

We're not talking about bringing them in and making them citizens.

Chief Justice Rehnquist: The Government can annex territory.

That was the Louisiana Purchase.

Mr. Olson: Of course.

Of course.

Let me just say, and I'd like to reserve the balance of my time for rebuttal, that there is nothing remotely close to a compelling governmental reason here even offered by respondent, except to justify, we have to have... limit people on the basis of race in the voting booth because we're going to limit people on the basis of race on the recipient end.

That is discrimination as an end justifying a discriminatory means.

That cannot be a compelling justification.

There's not remote narrow tailoring here.

It's obvious overclassification and underclassification.

It is unlimited in time, to use the words of the Adarand decision, and unlimited in terms of descendants from the individuals who are purportedly related to the class.

I will reserve the balance of my time, with the Court's permission.

Chief Justice Rehnquist: Very well, Mr. Olson.

Mr. Roberts, we'll hear from you.

Justice Roberts: Thank you, Mr. Chief Justice, and may it please the Court:

Petitioner was not denied the right to vote on account of race.

He was not permitted to vote for Office of Hawaiian Affairs trustees because he is not a beneficiary of the trusts they administer.

That beneficiary group is singled out not because of race, but because of its status, its congressionally recognized status as the subject of a trust relationship with the United States.

Chief Justice Rehnquist: Well now, just a minute.

What is the significance of it being a congressionally recognized status?

Justice Roberts: Because it flows from the Indian affairs power, and under that power Congress has the authority to determine what groups should be beneficiaries of the trust status, for how long, and to what extent.

Chief Justice Rehnquist: So you think... and what did Congress do?

Justice Roberts: Congress has singled out Hawaiians as a beneficiary of a trust relationship, just like the trust relationship that is extended to American Indians...

Chief Justice Rehnquist: Did Congress ratify this particular statute that's being challenged here?

Justice Roberts: It hasn't ratified it.

It has recognized it in recent legislation.

It has referred...

Chief Justice Rehnquist: What does that mean, Mr. Roberts, to say Congress has recognized a State statute?

Justice Roberts: Congress, in the Statehood Act, delegated to the State of Hawaii the responsibility for implementing the trust relationship

"in such manner as the constitution and laws of the State may provide. "

One way that Hawaii chose to fulfill that obligation is by establishing OHA, including this voting provision.

Congress has recognized the existence of OHA.

It gives Federal funds to OHA and says you, OHA, represent and serve the interests of Hawaiians.

It is a Native Hawaiian organization, and therefore will get the Federal funds in implementing the trust responsibility.

Chief Justice Rehnquist: And this is all done under Congress' power to regulate commerce with the Indian tribes?

Justice Roberts: Yes, it is.

The Framers, when they used the word, Indian, meant any of the Native inhabitants of the new-found lands.

Justice Scalia: It doesn't say Indian, it says Indian tribes.

Indian tribes.

It says Indian tribes.

Did Congress have power to regulate commerce with Native Americans who now are no longer living on reservations...

Justice Roberts: Congress...

Justice Scalia: and say, you know, we have the exclusive power to regulate commerce with Native Americans, whether they're on reservations or not?

Justice Roberts: Two points.

The answer is, their power does, in fact, extend to Indians who are not members of a tribe.

This Court recognized that in United States v. John.

It recognized it in United States v. McGowan.

It is recognized that Congress' power continues, for example, when tribal status has been terminated, continues beyond that, and in fact the IRA, the Indian Reorganization Act definition of an Indian includes Indians who are not members of any tribe.

Justice Scalia: They remain wards of the United States, and the United States...

Justice Roberts: Congress is... Congress...

Justice Scalia: is the Great White Father perpetually.

Justice Roberts: Your question contains, it seems, an objection to Indian law jurisprudence, and that's not the point.

The point is, does it extend to the Native Americans who happen to live on the islands of Hawaii.

Justice Scalia: The question is whether its source is the tribal character of the Indians.

That's the question.

Justice Roberts: Yes.

Justice Scalia: Now, the only provision in the Constitution I know of that refers not to Indian tribes but to Indians is the provision of the Fourteenth Amendment altering the way you count citizens in order to decide how many votes a State has, and it says representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians.

It doesn't mention tribes.

Excluding Indians not taxed.

Now, it's pretty clear what Indians not taxed meant.

It meant Indians who were not in the tribes, and if... I'm quoting here from Cohen's Handbook of Federal Indian Law, a standard source.

Only those few Indians who had severed their tribal relations and individually joined non-Indian communities were considered to be subject to ordinary laws in a manner that made it appropriate to count them in the apportionment of direct Federal taxes, or for representation in Congress.

It seems to me that there was a clear tradition of treating Indian tribes differently from Indians who had abandoned their tribal status.

Justice Roberts: The question is what tribes meant in the Constitution, and tribes at the time of the Framing was defined as a distinct body of people divided by family or fortune or any other characteristic.

That's a dictionary quotation.

Now, Hawaiians, as singled out by Congress, certainly satisfy that definition.

The Framers...

Justice Souter: But Mancari was more restrictive than that, wasn't it?

Justice Roberts: I'm sorry, Your Honor.

Justice Souter: What we said in Mancari was more restrictive than that, wasn't it?

Justice Roberts: Mancari referred to federally recognized tribes because that's the way the preference was written in that case, but that...

Justice Souter: But it emphasized the organizational or organized character of the tribes, and... which seems to go against this great level of generality which you're trying to import into it by reference to the 18th Century definitions.

Justice Roberts: Well, it's not a level of generality.

The power rests with Congress, not the Bureau of Indian Affairs that gives the stamp of approval and says, this is a tribe.

Justice Souter: Well, it rests with Congress once we have identified what is meant by Indian tribe under the Indian Commerce Clause, and Mancari seems to say that, as Justice Scalia has suggested, that in fact the definition is narrower than you are arguing for.

Justice Roberts: Well, and my point is that it referred to federally recognized tribes simply because that's the way the preference was written, but that doesn't answer the objection that it's a race-based preference.

The preference also only applied to one quarter Indian blood beneficiaries, so it wasn't simply tribal status.

It's no answer to say, we were dealing with a tribe so race was off the table.

Justice Souter: Well, it wasn't sufficient, but it was necessary.

Race was a necessary condition.

Justice Roberts: To qualify for the benefit, and the reason it was not race-based was because... not because of tribal status per se, but because the tribe was the proper subject of Congress' exercise of its Indian affairs power, so...

Justice Kennedy: Well, but it seems to me, Mr. Roberts, that you begin by saying, now, this is not race, it's a trust.

If we had trust in Oklahoma for people who could vote in 1910, and they could go to the special school, everyone knows that the reason for that would be that they were white, and it seems to me that you're almost afraid of your own best argument by telling us not to look at race.

Of course it has to do with Hawaiian ethnicity.

Justice Scalia: That's your whole argument, I thought...

Justice Roberts: Oh, that is...

Justice Kennedy: and it seems to me that when you tell us, oh, don't worry about it, it's a trust, that just diverts our attention from the real issue in the case.

Justice Roberts: The question whether they can be treated under Mancari is whether they can qualify under the Constitution as an object of Congress' Indian affairs power, and this Court has seen this case before.

It is a replay of Sandoval.

In Sandoval, the question was the Pueblo Indians.

The Court had previously said they're not Indian tribes, United States v. Joseph, so when Congress tried to treat with them under its Indian affairs power in the admission Act for New Mexico, the objection was raised, you can't.

You said they're not Indian tribes.

And what this Court said is, when Congress deals with a Native group under its Indian affairs power, it's for Congress to decide that it will do so, and that determination isso long as it's not arbitrary.

That's the standard.

Justice Scalia: So your answer to my casino hypothetical that I put to your friend would be the opposite, that Congress could indeed deem every person with Indian blood in his veins to be a member of an Indian tribe and allow those people and only those people to conduct casinos?

Justice Roberts: I think that raises a question on the application of Mancari.

It would not be race-based, but Mancari says more than that.

It says that the classification has to be rationally related to the fulfillment of Congress' obligation toward the Indians, and that...

Justice Scalia: Well, the obligation would be the same one that's alleged here, that we've treated their ancestors, you know, shamefully, and we're making up for it.

Justice Roberts: That wasn't the... that's not the obligation at issue here, nor was it the obligation in Mancari.

It was to promote self-governance, and that is exactly what the OHA electoral provision does.

It promotes the governance of the beneficiaries in the running of the trust, and makes the trust more responsive, exactly the same as in Mancari.

In the casino hypothetical it's quite different.

I don't think it's enough to say you meet Mancari so long as you're doing something good for the Indians.

Mancari is a much more focused inquiry.

Chief Justice Rehnquist: Well, what if Congress had at the time we acquired the Mexican cession, California, New Mexico, Arizona, had set up a special trust for people who were living in that territory at that time, who were almost entirely Spanish-speaking.

Could it do that?

Justice Roberts: I think not, Your Honor, because there you would bump up against the constitutional limitation to Indian tribes.

By Indians the Framers meant the Native inhabitants.

Out obligations extend to, for example, the Alaska Natives, not the Russians who were there first.

Chief Justice Rehnquist: Okay, now what does... how do you define Native inhabitants?

Why weren't the Spanish-speaking people in New Mexico Native inhabitants?

Justice Roberts: It's traced from Chief Justice Marshall's opinions in cases like Worcester v. Georgia and Johnson v. M'Intosh, where he recognized the basic distinction between the aboriginal indigenous people and the European newcomers, and that, by the way, is the only purpose served by the 1778 date.

That's the line that it's drawing, is between the aboriginals and the newcomers, a distinction that...

Justice Scalia: Oh, we do have a racial distinction embedded in the Constitution between aboriginals and European newcomers?

That's in the Constitution?

Justice Roberts: It's not only in the Constitution, in the Commerce With Indian Tribes, it's in the Civil War amendments, the passage Your Honor quoted previously.

The idea that that...

Justice Scalia: Related to tribes.

That was my whole point previously, that the exception made in that reservation was not for Indians.

Justice Roberts: And Congress has determined...

Justice Scalia: It was for Indian tribes.

Justice Roberts: And Congress has determined that it can treat with Hawaiians as it treats with Indian tribes.

This Court can review that determination under Sandoval only to determine that it's arbitrary, and Congress has said why it is treating Native Hawaiians in the same way as it treats Indian tribes in these recent legislations... legislation.

It has said, because we find them to be a distinct and unique indigenous group.

We find...

Chief Justice Rehnquist: Was that contemporaneous with the recognition of the OHA?

Justice Roberts: The passage I was just referring to is a much more recent 1988 legislation 10 years later, but Congress has treated with Native Hawaiians consistently since...

Justice O'Connor: But don't we have to look at what Hawaii has done, not what Congress has done?

I thought we were looking at a Hawaiian State statute setting up a voting scheme, and I'd like to come back to that, if we could.

Justice Roberts: What the Federal Government did at Statehood was delegate to the State of Hawaii the responsibility for implementing the Federal trust relationship.

It took the 1920 2000 acres and said, we're giving it to you, but you've got to implement...

Justice O'Connor: But it didn't say you're exempt from the Fifteenth Amendment.

Justice Roberts: No, it did not.

Justice O'Connor: And I suppose it can't.

Justice Roberts: No.

Justice O'Connor: So the question is, does this statute comply with the Fifteenth Amendment?

Does this State statute comply?

Justice Roberts: And...

Justice O'Connor: Could we talk about that?

Justice Roberts: Under this Court's decision in Yakima, where a State law is implemented pursuant to, flows from, is based on Federal classification under the Indian affairs power, it's examined under Mancari just like a Federal legislation would be.

This piece of legislation, the voting provision, was enacted by Hawaii to implement the responsibility.

Justice O'Connor: Would it violate anything Congress passed if Hawaii were to extend the vote in this trust arrangement to people without the racial qualification?

If Hawaii opened it up, as the petitioner seeks, to other voters, would it violate anything that Congress passed?

Justice Roberts: No, I don't think that in itself would violate anything.

The question, though... and the United States has retained the power to sue the State if it breaches the trust.

The question would be what the trustees do.

Justice O'Connor: Would it breach... would it breach the trust that has been established to extend the vote to...

Justice Roberts: It would interfere...

Justice O'Connor: Hawaiian citizens?

Justice Roberts: I don't know that it would breach the trust, but it would make implementation of it more difficult, for this reason.

We've heard, for example, the objection that the Hawaiians don't have a sovereign government any more, but OHA serves many of those same functions, and Congress has found this.

It says, OHA serves and represents Native Hawaiians, and if it were open to everyone, it could no longer serve that function, which it seems...

Chief Justice Rehnquist: OHA is kind of an independent sovereignty in the State of Hawaii?

Justice Roberts: No, it's not an independent sovereignty.

I didn't mean to go that far.

But it does serve many of the functions of representing the Native group to whom this trust relationship has been extended, and it will...

Justice Kennedy: But it does much more than that.

It doesn't apply just to Native Hawaiians.

It applies to all of... all Hawaiians.

It has many... correct me if I'm wrong.

I thought that OHA dispensed funds, and it gave services to Hawaiians, as well as Native Hawaiians.

Am I wrong?

Justice Roberts: By Hawaiians, you mean the group that can trace at least one ancestor to 1778?

Justice Kennedy: Yes.

Justice Roberts: Yes that's true.

It operates two separate trusts.

Justice Kennedy: So you're talking about the Native Hawaiians in the trust, but the purposes of OHA are much broader than that.

Justice Roberts: Well, there's some confusion...

Justice Kennedy: And they are generally governmental in character.

Justice Roberts: There's some confusion because the Federal statutes use the phrase, Native Hawaiians to refer to all covered by the trust relationship with one ancestor, and the distinction is in the Hawaiian legislation.

OHA manages two separate trusts, one for the benefit of the 50 percent category that was a qualification imposed on it by Federal law, and the other for all indigenous Hawaiians.

Justice Breyer: That I think is the problem.

It seems to me from reading it, am I right, that everyone who has one Hawaiian ancestor at least gets to vote, and more than half of those people are not Native Hawaiians.

They just have a distant ancestor.

And so those people vote, although the amount of money involved for them is only about $17 million, and the amount of money involved for the others is hundreds of millions.

Justice Roberts: Congress has changed the definition of the group to whom it's extended this trust relationship.

It no longer limits it to those with a 50-percent blood quantum, it says, and has, since 1974.

Justice Breyer: So might this be all right if it were just for the Native Hawaiians, but not all right if it includes more than half the people who are really like everyone in Hawaii but for the fact that they can trace one ancestor back?

Justice Roberts: I think not, because Congress since before OHA in 1974, defined the group that is the beneficiary of the trust relationship to include those who can trace one ancestor back.

That's not unusual, by the way.

There are Indian tribes who do...

Justice Breyer: Could you also respond to Justice Kennedy... well, you ask... I wanted him to respond to your question.

Justice Kennedy: We're back to where Justice O'Connor brought us.

This is a State scheme in which voting for a State entity which has education, housing, et cetera, et cetera, is not limited to one person one vote.

It's limited to this broad group of anyone with any Hawaiian ancestor.

Justice Roberts: It does not have any general governmental responsibilities.

Yes, it funds programs for its beneficiaries in areas like housing and education, but it has no general governmental responsibilities in those areas at all.

Its mission is limited to Hawaiians.

Justice Scalia: Mr. Roberts, assuming that the treat with the Indians power of the Federal Government includes Indians generally, and not just tribes.

What basis is there for thinking that the Federal Government can delegate that power to a State?

Justice Roberts: Oh, it's done it frequently.

Public Law 280 is the clearest example.

Justice Scalia: Can it delegate the power to make a treaty?

Could it have delegated the power to make a treaty with Indian tribes to a particular State and say, you make a treaty?

Justice Roberts: No, I don't think it could have, but it has frequently delegated lesser responsibilities.

Public Law 280, the criminal law area, is the example the Court's probably most familiar with.

It allows States to apply their criminal laws on areas where, without the delegation, the States could not do so.

Justice Scalia: But the State... that's the State governing people on the reservation, at least its own citizens there.

That's not a matter of the State prescribing what special rights these tribes will have by reason of their status as tribes, or these Indians by reason of their status as Indians.

I don't know on what basis you think that that power, if it is a congressional power, can be delegated to a State.

Justice Roberts: Well, the situation in Hawaii is unique, and under our Federal system, it's open to Congress to say that we're going to work with the State to implement this responsibility.

It shouldn't be surprising that of all the States Hawaii would be the example where that would take place, because of the different history.

Alaska, there's a different situation with respect to...

Chief Justice Rehnquist: Public Law 280 isn't... doesn't support you at all, I don't think.

Public Law 280 just says that a State can extend its existing criminal laws that already apply to everybody to the Indian reservation.

You're saying that Congress can delegate to a State the authority to fashion special rules for a particular group within the State.

Justice Roberts: Well, I... with respect, Your Honor, I think Public Law 280 is a delegation of responsibility to enforce those criminal laws, because the State would be without power to do so in the absence of the delegation.

Chief Justice Rehnquist: Yes, but they're general laws.

They're not saying to the State, you can draw up special laws to govern Indian tribes.

Justice Roberts: Well, in OHA it doesn't draw up special laws.

It administers the existing trust.

It is unusual, Justice Scalia, to have that delegation, but look what the Federal Government did.

It took the 200,000 acres of land that it had under the 1920 act and gave it to the State.

That's unusual, too, and if you're going to be giving the corpus the land, it seems perfectly natural to say, you are going to have responsibilities in administering this land for the trust.

Justice Scalia: It's unusual, but it's not a delegation of Federal power, and here you're saying they left it to the State to decide who can vote on the basis of tribal membership...

Justice Roberts: The question would be...

Justice Scalia: or aboriginal membership.

Justice Roberts: The question would be, under Mancari, whether it's rationally related to fulfilling Congress' trust obligation, and if the State strays from that, it can be brought back to that standard.

It's not free rein.

It is still Congress' responsibility, and our Federal system allows Congress to say, in this unusual situation, where you have a unique history, while in other places we say to the States, hands off the Indian lands, here we give some of the lands that we've held in trust and say to the State, help us administer it.

In Alaska, they set up corporations under State law, and that's again a different situation, a different approach.

Our Federal system is flexible enough to accommodate approaches that are sensitive to the different...

Justice O'Connor: Well, yes, but presumably Hawaii would not have the authority to violate the First Amendment in structuring the State laws, and perhaps not to violate the Fourteenth Amendment, and perhaps not to violate the Fifteenth Amendment.

Justice Roberts: Because the OHA voting provision implements the Federal classification based on Native status, it's not race-based, and therefore doesn't violate the Fifteenth Amendment.

Thank you.

Argument of Edwin S. Kneedler

Chief Justice Rehnquist: Thank you, Mr. Roberts.

Mr. Kneedler, we'll hear from you.

Mr. Kneedler: Mr. Chief Justice, and may it please the Court:

The eligibility criteria in this case arises out of a determination by Congress that the United States has a special relationship with the once-sovereign indigenous people of Hawaii, just...

Justice Souter: Mr. Kneedler, do I understand correctly, on your view, that we cannot decide this case without deciding that in fact that assumption made by Congress is correct, and that the Native Hawaiians may be treated as an Indian tribe within the meaning of the Commerce Clause?

Am I right in assuming that's... underlies everything you're going to say?

Mr. Kneedler: It does, but it's a very important determination, because we think that Congress' Indian affairs power applies in Hawaii to the indigenous people, but the nonindigenous people encountered there, just as it does in the other 49 States and, indeed, Congress' first action with respect to Native Hawaiians was in the same form that Congress has always taken with respect to Native Americans, wherever they've been in the United States, and that is to set aside a land base for them.

In 1920, not long after annexation, Congress set aside 200,000 acres of land, which was...

Justice Scalia: Excuse me.

Was this a land base for the Hawaiians to live on?

Is that why this land was set aside?

Mr. Kneedler: Yes.

There are 200,000 acres that are set aside under the Hawaiian Homes Commission Act, passed in 1920, explicitly pursuant to Congress' Indian power, and there are 6,800 leases to Native Hawaiians on those lands, and a waiting list of 30,000 more, which...

Justice Scalia: And only Native Hawaiians as defined in this legislation live on that land?

Mr. Kneedler: Only Native Hawaiians of 50 percent or more blood are eligible for those lands.

Justice Scalia: Can live on that land.

Mr. Kneedler: But the important point about that is that that manifests Congress' recognition soon after annexation that Native Hawaiians in Hawaii constituted a distinct community and, like Indian groups elsewhere, a distinct community whose ties to the land and the culture that springs from that...

Justice Kennedy: Where are those lands?

Are they on all of the islands?

Mr. Kneedler: They are scattered on all the islands, according...

Justice Kennedy: And are they leased only to Native Hawaiians?

Mr. Kneedler: Yes, they... well, there are some lands that are leased to non-Natives for revenue purposes, but the purpose...

Justice Kennedy: Like hotels?

Mr. Kneedler: Some are agricultural leases, and that sort of thing, but the... but...

Justice Kennedy: So it's not just for Hawaiians to reside on.

Mr. Kneedler: It's... but it's... the only residences there would be for Native Hawaiians.

The land as a whole is for the benefit of Native Hawaiians, just like an Indian reservation land might be leased to a hotel.

It doesn't mean that the land that is set aside isn't for... at the core of recognizing the Native Hawaiian people.

Justice Scalia: Well, you're not saying this is run like an Indian reservation.

Mr. Kneedler: No...

Justice Scalia: There's no governing council.

Justice Stevens: There's just... it's just...

Mr. Kneedler: My... there's nothing magic about a reservation in terms of Congress' plenary Indian power.

Congress has tailored the way in which it has responded to the Native people...

Justice Breyer: How do we extend that to people 10 generations later, who had 10 generations ago one Indian ancestor?

I mean, that might apply to everybody in the room.

We have no idea.

Mr. Kneedler: There are many Indian tribes in this country, a number that are identified in title 25 of the United States Code, tribes that have been restored, where tribal membership is defined in terms of descendancy, lineal descendancy from the tribe that was in existence at the time...

Justice Breyer: Someone where there's no tribal organization, and there is no people living on the land, and you just have one ancestor 10 generations ago...

Mr. Kneedler: No, it's important to recognize the basis for what Congress has determined in this century, starting with the Indian... or, excuse me, the Hawaiian Homes Commission Act, and that is that as Congress said in the resolution in 1993, the Native people of Hawaii, in Hawaii right now, have an historic continuity to the sovereign nation that existed at the time of European contact, and has continued that, and not only that, that they are distinct people, and that they are determined to maintain their culture, their language, and their ties to the land, and pass them on.

Justice Scalia: There are a lot of groups in this country like that.

There are a lot of groups in this country like that.

Mr. Kneedler: But the...

Justice Scalia: And do you say that when you add to that one more factor, namely that they were there when... first, that you can discriminate on the basis of race with respect to those groups, but not the other groups who have their own continuity, their own history, perhaps have been aggrieved, and so forth.

Mr. Kneedler: With respect, it's not just one more factor.

It's a fundamental factor, recognized in the text of the Constitution, and established the relationship between the indigenous people who were here and the nonindigenous people who arrived.

This Court's foundational cases on Indian law are based on the relationship between the period after European contact and prior to European contact, and the Indian Commerce Clause, which is a manifestation of Congress' plenary power over Indians, is descriptive of the fact that the Europeans...

Chief Justice Rehnquist: You say it's a manifestation of... it's the source of Congress'...

Mr. Kneedler: It's not the sole source, and what this Court...

Chief Justice Rehnquist: What is the sole source?

Mr. Kneedler: This Court... there are a variety of sources, and this Court said in Mancari that Congress' power derives both explicitly and implicitly from the Constitution.

And in Sandoval, which is an important parallel to this case, the Court said that not only does Congress have the explicit power under the Indian Commerce Clause to regulate commerce with Indian tribes, but it has been... there has been a long executive and legislative practice and long line of judicial decisions recognizing the power of Congress to do what it did here to extend fostering care and protection to Indians, who are the descendants of those once-sovereign, completely independent nations, because of the responsibility that the United States bears for having eliminated their sovereign government and their control over their land.

Chief Justice Rehnquist: Did this suggest that had there been this case, Sandoval, or these other things, suggest that had there been no Indian Commerce Clause, Congress still would have had plenary authority to deal with Indian tribes?

Mr. Kneedler: Perhaps, but I think the important thing is that this is a power that recognizes... that stems from or flows from the fact that there were tribes, and the full powers of those tribes have been eroded, but does not detract from the people, that Indian communities remain distinct Indian communities.

Justice Scalia: So your answer to my casino hypothetical is that you could say only Indians can run casinos.

Mr. Kneedler: No.

I think there's an important difference between the way the trust relationship has been exercised by Congress over the years, which is a bilateral relationship between the United States and the Indian people, so giving resources and land and special benefits to the Indian people is quite different from giving them preferences in the outer world, and that distinction is rooted in Mancari itself, where the Court said that case would be different if the employment preference extended to the entire Civil Service, or the country at large.

Justice O'Connor: Why is that?

Justice Kennedy: I mean, that's...

Mr. Kneedler: Because the trust...

Justice Scalia: That sounds nice, but I don't know why that would have any constitutional significance.

If you can give them preferences, you can give them preferences.

Mr. Kneedler: The historic relationship has been a bilateral one, and the BIA was...

Justice Scalia: It has been, but what in the Constitution requires it?

If you're entitled to favor this group as, you know, subject to a trust responsibility of yours, why would it be limited to that?

Mr. Kneedler: I think this is a situation in which the way in which Congress has carried out its trust relationship over the years is instructive.

I do want to make an important...

Justice O'Connor: Well, Mr. Kneedler, I think this is an interesting discussion, but I'm not sure quite how it answers the question before us dealing with what Hawaii can do.

Mr. Kneedler: Well, we think that cases such as the Yakima case indicate that where a State is acting within a sphere in which Congress has authorized it to act, that the State is entitled to enact measures to promote self-determination in the same way.

Justice O'Connor: Well, but now this... the funds administered, as I understand it, also include tax dollars appropriated by the Hawaii legislature.

Mr. Kneedler: They do, but once...

Justice O'Connor: It isn't just Federal money.

I mean, Hawaii as a State has set up this scheme, and if the scheme were to permit voting by others, does that violate anything Congress has set out?

Mr. Kneedler: No.

The... Hawaii has done that, but the important Federal act is the recognition of all Hawaiian people as a distinct group.

Once that political recognition by Congress has been made, then the States we think can do things that correspond to that.

I would like to respond to the point whether... about individual Indians.

In Mancari itself, one of the cases the Court critically relied upon there was the Seber decision, which recognized Congress' power with respect to people who were not enrolled members of the tribe, and the rationale there was that there is often a transition period from tribal status to a fully integrated member of society during which Congress can exercise its special protective care.

That goes back to the Kagama decision, as reiterated in Mancari.

Justice Scalia: And these Hawaiians are not fully integrated in Hawaiian society?

I've been there, and I...

Mr. Kneedler: There are variations, just as there are among the Cherokee in Oklahoma.

There are those who live on the...

Justice Scalia: Cherokee... I'm talking about Hawaiians.

Do you say that that rationale applies here, that these people have not made the transition, that they're still, you know, aboriginal in some sense, and they're on their way to being fully integrated American citizens, but they haven't quite made it.

Justice Breyer: Is that the theory?

Mr. Kneedler: Congress has so determined, that Native Hawaiians remain a distinct community, the phrase that was used in Sandoval itself, and was used in Worcester v. Georgia by Chief Justice Marshall at that point, because they had distinct lands, they retained their distinct culture, all the factors that the BIA has historically looked...

Justice Kennedy: And are you defining Native Hawaiian now to mean any Hawaiian and...

Mr. Kneedler: Yes, I'm sorry, the Native people of Hawaii.

Justice Kennedy: So 148 will do it.

Mr. Kneedler: Lineal descendancy, which is a measurement, yes, that a number...

Justice Kennedy: 196.

Mr. Kneedler: that other tribes use.

Justice Scalia: Congress has said that's a distinct group, 19... if you have 195th Hawaiian blood, you're...

Mr. Kneedler: What Congress said... yes, it has, as it has in a number of statutes in title 25 after section 700 with respect to a lot of restored tribes.

Justice Kennedy: Thank you, Mr. Kneedler.

Mr. Kneedler: Thank you.

Rebuttal of Theodore B. Olson

Chief Justice Rehnquist: Mr. Olson, you have 4 minutes remaining.

Mr. Olson: Thank you, Mr. Chief Justice.

The respondent and the United States Government have read the Constitution differently, this Court's decisions with respect to its authority over quasi-sovereign Indian tribes differently, and the Federal statutes that deal with Hawaiians and other minority groups differently than we have read them.

We believe, and we think it's clear from this Court's decisions, that the authority of Congress... and it is of Congress, it's not of the States, and it may only be delegated in a very narrow, explicit way.

That is the word that was used by this Court in the Yakima Nation case, only under very limited circumstances with respect to the criminal laws of a particular State.

Justice Ginsburg: Mr. Olson, this case is a kind of a special, unusual situation as presented to us, but what are the ramifications of the position that you are arguing?

How many Federal statutes, Hawaii statutes that recognize the Hawaiian Natives as a special class would be affected if we were to adopt your position?

Mr. Olson: It is impossible for me to answer that question, for this reason.

Each of those statutes is different.

Some of them have to do with things like the Smithsonian, and cultural benefits, and the study of a culture.

Some of them have to do with pure racial preferences with respect to Government contracting.

Some of them are in different categories.

This Court would have to look at... if this is a race-based distinction, and we don't see any basis for arguing that it is not a race-based...

Justice Scalia: Wait, I thought... as far as the Fifteenth Amendment is concerned, are there a lot of statutes...

Mr. Olson: No.

No.

Justice Breyer: that limit voting?

Mr. Olson: I should have made myself clear.

This case, as I said at the very beginning, the simplest, narrowest, easiest basis upon which this case could be decided is the Fifteenth Amendment.

I am aware of no Federal statute...

Justice Stevens: You don't really suggest that if you win there won't be a lot of litigation as a result of this.

Mr. Olson: There will be litigation.

Almost invariably there is whenever this Court makes a decision, Justice Stevens, but...

[Laughter]

And there was as a result of the Chadha decision, and there was as a result of the Adarand decision, but this Court will perform its function, or lower courts will perform their function of examining statutes that discriminate on the basis of race on their face under the Fourteenth Amendment standard and, Justice Scalia, it's correct that only the Fifteenth Amendment is involved here.

The... with respect to as far as the Court need to go.

Justice Ginsburg: The Native Alaskans, also the same thing.

Everything would be up for grabs.

Mr. Olson: Well, there is no statute of which I'm aware that creates special voting privileges for Native Alaskans, and there are different... there are tribes in Alaska that would possibly be treated differently under these statutes.

It's very difficult for me to understand, for example... one of the statutes considered by this Court in Adarand gave a racial privilege in the contracting area to Asian Pacific Islanders.

I don't know whether that included Native Hawaiians or not.

Let me clarify one point that I think was confused by both Mr. Kneedler and Mr. Roberts.

According to page 18 of the respondent's opposition to certiorari, OHA beneficiaries are determined without regard to any tribal classification, and they go on to say the tribal concept has no place in the history of Hawaii.

That leaves them with this notion, and let me close on this note.

They argue that the United States Government and, as a result of some intangible, unclear delegation, States, may make classifications of people based upon a remote ancestor who is an aboriginal person.

That means... and as far as the eyes can see and as far as the time might go, that people can present cards showing their racial ancestry to the United States Government and to the State of Hawaii and if they have an aboriginal ancestor, they get in the preferred line.

That puts people in that category...

Chief Justice Rehnquist: Thank you.

Thank you, Mr. Olson.

Mr. Olson: Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: The case is submitted.

The honorable court is now adjourned until Tuesday, October twelfth at ten o'clock.