The status of two lawsuits involving the Nai Aupuni election voter pool is uncertain after the organization announced Tuesday it is canceling the election but proceeding with plans for a constitutional convention concerning the establishment of a Native Hawaiian government.
One of the suits claimed the Nai Aupuni election voter pool was too exclusive, while the other lawsuit claimed it was too inclusive.
In response to the former suit, the U.S. Supreme Court delayed ballot-counting until a lower court could rule on a claim that the voter pool was race-based thus unconstitutional.
Meanwhile, Samuel Kealoha Jr., Virgil Day, Josiah Ho‘ohuli, Patrick Kahawaiola‘a and Melvin Ho‘omanawanui had sought to stop the election process for the opposite reason.
In a complaint filed last month, they sought to limit eligible voters to people who are at least 50 percent Hawaiian.
Walter Schoettle, the attorney for the plaintiffs, said in a phone interview that he filed the complaint after the court rejected his effort to intervene in the ongoing lawsuit challenging the election process, Akina v. State of Hawaii.
“We’re trying to say it should be restricted to real honest-to-goodness Native Hawaiians and not less than one-half part,” Schoettle said.
The use of a blood quantum to define who is Native Hawaiian dates back at least to the passage of the 1920 federal Hawaiian Homes Commission Act.
The state Department of Hawaiian Home Lands grants 99-year homestead leases at a rate of $1 per year to Native Hawaiians. The department defines the term as “any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778.”
The current effort to establish a Hawaiian government defines a qualified Native Hawaiian as anyone over the age of 18 who can trace their ancestry to the indigenous people who lived in Hawaii prior to 1778.
The lawsuit Schoette filed argues that Nai Aupuni should have relied on the same blood quantum employed by Hawaiian Home Lands.
Schoette estimates using that more restrictive definition would cut the number of people who would have been eligible to vote in the election from 500,000 to 40,000.
It’s not the first time Schoettle has sued on behalf of Kealoha, Day, Ho‘ohuli, Kahawaiola‘a and Ho‘omanawanui, all of whom are of at least one-half Hawaiian descent.
All five filed a lawsuit nearly a decade ago challenging the Office of Hawaiian Affairs’ ability to use its funding to benefit anyone of Hawaiian ancestry.
Back then, Schoettle told the Associated Press that the lawsuit was about inheritance, not race: “These are the closest relatives to the people whose lands were taken from them unjustly. It’s about kinship, kinship, kinship.”
But the state Supreme Court ruled in 2013 that OHA doesn’t have to limit its spending to only benefit people who are at least 50 percent Hawaiian.