Monday, May 30, 2016


Six individuals challenging a process to potentially establish a Native Hawaiian government told the Ninth Circuit on Tuesday that their suit is still viable, despite claims by the state of Hawaii and other defendants that the dissolution of the foundation behind the movement made the appeal moot. 

The group sparred with the state of Hawai`i, its Office of Hawaiian Affairs and the Na‘i Aupuni Foundation, who argued Tuesday in separate briefs that the challengers can no longer seek to block the ratification of a proposed constitution for a Native Hawaiian government because the foundation, which had once planned to conduct a vote on ratification, was dissolved in April after saying it wouldn’t hold the vote. The appeals court had ordered briefing from the parties on the question.

The challengers, who includes Native Hawaiians, Native Hawaiian descendants and state residents, said the issue hasn’t been resolved, arguing it’s not clear that Na`i Aupuni or the other defendants wouldn’t try again to conduct a ratification vote based on an allegedly race-based voter roll at some point.

“If the appellees truly were willing to forgo holding a ratification vote using the roll, the way to properly resolve the claims in this matter would be by agreeing to the issuance of a permanent injunction to that effect,” they said.

Na`i Aupuni originally planned to hold a vote-by-mail election of delegates to a convention known as an ‘aha to discuss a path to Native Hawaiian self-determination and potentially draft a constitution, but it terminated the election in December, saying the suit initiated by the six individuals — which primarily alleges the election process excludes non-natives in violation of the U.S. Constitution — could drag on for years.

Instead, the group offered seats at the convention to all 196 candidates, approximately 150 of which ultimately planned to attend the ‘aha, which began on Feb. 1 and concluded Feb. 26 with the approval of the proposed constitution.

U.S. District Judge J. Michael Seabright decided in October not to block the then-upcoming election, and Kelli Akina and the other plaintiffs appealed to the Ninth Circuit, arguing that the election was a public function because Na‘i Aupuni was working with the state of Hawai`i, including using a race-based list of Native Hawaiian voters created by state agencies.

The challengers said in a Feb. 19 filing that their suit wasn’t rendered moot when the election was canceled, arguing that the anticipated vote to ratify “governing documents” emerging from the event would unconstitutionally rely on the same race-based voter roll....