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An election of delegates to a Native Hawaiian convention on self-governance can proceed, a federal judge in Honolulu ruled Friday.
U.S. District Court Judge Michael Seabright said he will not block the Nai Aupuni election, set for next month, because it is a private election not subject to public-election laws.
That makes it different from elections for the trustees of the Office of Hawaiian Affairs, a quasi-state agency responsible for improving the well-being of Native Hawaiians; federal courts have ruled that nonnatives can both run in those elections and vote for candidates.
The convention could create a Native Hawaiian governing body roughly similar in nature to the governing bodies of many U.S. Native American and Alaska Native tribes and indigenous groups.
Though the Nai Aupuni election process was facilitated through Act 195 by the Hawaii Legislature, Seabright said the Native Hawaiian Roll Commission, established as a result of the act, merely created a list of potential voters.
And though Nai Aupuni is funded through grants from OHA, Seabright said Nai Aupuni is “completely independent” — even if OHA supports its activities. The OHA money was granted to the Akamai Foundation, a private nonprofit that in turn funded Nai Aupuni.
The election is being handled by a private contractor and not the state Office of Elections; and it will not result in the election of government officials. The bottom line, said Seabright, is that the Nai Aupuni election “has nothing to do with the government of the state of Hawaii” and is instead an “internal matter of self-determination.”
Seabright also rejected arguments by the Grassroot Institute of Hawaii and Judicial Watch that the election, which involves only certified Native Hawaiian voters and candidates, is race-based and thus violates the 14th Amendment on equal protection and the 15th Amendment on due process.
Nor were the First Amendment rights of the plaintiffs infringed upon, Seabright determined, saying they did not suffer “irreparable harm.”
The judge also concluded that the election does not violate the Voting Rights Act of 1965.
Finally, Seabright characterized the Nai Aupuni election as a matter of great public interest.
“The state has a compelling reason to give dignity to the indigenous people,” he said, and could do so by letting Native Hawaiians “decide for themselves whether they want self-governance.”
“The question of sovereignty is not going to go away,” he said.
Seabright said he would issue his formal written ruling in about a week. Grassroot Institute, a conservative public-policy think tank in Honolulu, and Judicial Watch, a conservative foundation based in the District of Columbia, are expected to appeal to the 9th Circuit Court of Appeals, in San Francisco.
Robert Popper, an attorney for Judicial Watch — he and others on the mainland were connected by telephone lines to Seabright’s Honolulu courtroom — asked Seabright to certify a transcript of his oral order and approve a motion for an injunction to halt the election process pending appeal.
Seabright, perplexed by the requests, said he would not accept a motion that effectively would reverse his oral decision.
Soon after that, a man in the audience shouted out, “Shame on this court! It is incompetent!” The man was escorted out of the courtroom by federal marshals.
Speaking with reporters afterwards, Michael Lilly, the Grassroot Institute’s attorney, disagreed with Seabright’s ruling that Nai Aupuni is a private election.
“It’s pretty much documented that indigenous people — if they have self-determination — that it makes a big difference.” —Bill Meheula, Nai Aupuni attorney
“I don’t see how you can really argue that this is a private action when it was all teed up and organized by the state of Hawaii through state agencies and state funding,” he said. “It’s about as much a state action as anything could be. And if you are able to create a way to avoid state action like this, then that’s a prescription to make it very easy to avoid state action in other cases, which would be offensive.”
But Bill Meheula, Nai Aupuni’s attorney, said he believed Seabright made the right call. He said he and others involved in the process made sure Nai Aupuni was established as a private election.
The election is to be held by mail-in ballot and online throughout November. Election results are due Dec. 1 and the aha, or convention process, is set to be held on Oahu from February to April.
The delegates could establish a governing self-entity that would have government-to-government status with the United States. Meheula predicted that the election could lead to “structural change” for Native Hawaiians, and could benefit them greatly.
“Right now they are on the lowest rung of the socio-economic status,” he said. “It’s pretty much documented that indigenous people — if they have self-determination, they have their own government — that it makes a big difference, and for a long time too… We’ve been looking forward to this for decades, from the seventies, and to have this moment right now where we are actually going to take that step, where 95,000 native Hawaiians can vote on 40 delegates that can start this process, this governance — it’s wonderful.”
For his part, Kelii Akina, Grassroot Institute president, said, “Today’s ruling is the first step in taking our case to a higher court, where we are confident that the constitutional principles will prevail.”