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7 U. Haw. L. Rev. 63 (1985)
The Constitutionality of the Office of Hawaiian Affairs

handle is hein.journals/uhawlr7 and id is 71 raw text is: The Constitutionality of the Office of Hawaiian Affairs by Jon Van Dyke* The following piece by Professor Jon Van Dyke is a memorandum in opposition to the State of Hawaii's motion to dismiss in pending litigation, in which the consti- tutionality of the Office of Hawaiian Affairs was inferentially questioned. The memorandum has been edited slightly for purposes of publication. I. INTRODUCTION The question of the constitutional legitimacy of the Office of Hawaiian Af- fairs (OHA)1 and other special programs and preferences for native Hawaiians' has been raised in several contexts since 1978 when the voters of Hawaii ap- proved the proposal of the Constitutional Convention to create OHA.' During the period when the Hawaii State Legislature was drafting OHA's implementing legislation, Senators Duke Kawasaki and Neil Abercrombie * Professor of Law, Richardson School of Law, University of Hawaii at Manoa. B.A., Yale University, 1964; J.D., Harvard Law School, 1967. Member of the Hawaii, California, and District of Columbia Bars. The author would like to express appreciation to Debra Lee who helped with some of the research of this article and to the many other native Hawaiian students at the Richardson School of Law who have helped during the past decade to develop and refine the legal issues that affect the Hawaiian community. This analysis, prepared for the Office of Hawaiian Affairs in connection with current litigation, is based on long-established legal princi- ples that have evolved during the past two hundred years of our nation's histry. 1 The Office of Hawaiian Affairs is described at infra text accompanying notes 26-35. See generally HAWAII CONST. arts. XII, XIII, and HAWAII REv. STAT. ch. 10 (Supp. 1984). 2 In this article the term native Hawaiian is used broadly to refer to all persons who have descended from the aboriginal peoples who inhabited the Hawaiian Islands prior to 1778. The term is thus used to link and compare these people to native Americans inhabiting other parts of the United States, and not to refer to any specific blood quantum requirement. See infra notes 44, 159, and 162 and accompanying text for some of the more specific statutory definitions. ' Many of the instances in the first half of this century when constitutional questions relating to Hawaiian programs were raised are discussed in this article. See infra notes 55-61, 149-53 and accompanying text.

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