December 28, 2015

Native Hawaiian self-governance case heats up

By Meriem L. Hubbard Senior Attorney

Last summer, six Hawaiian residents filed a lawsuit in federal court, challenging the constitutionality of a provision allowing Native Hawaiians to hold an election of delegates, a convention, and a referendum.  This process is designed to further self-determination and self-governance by achieving federal tribal status for Native Hawaiians and setting up a new Native Hawaiian nation.  Only Native Hawaiians are entitled to vote in the election for delegates, and only Native Hawaiians are eligible to seek a delegate position. Thus, all non-native Hawaiians are excluded from the process.

On December 2, 2015, PLF attorney Joshua Thompson blogged that the U.S. Supreme Court had enjoined this race-based election.  Although the election for delegates was underway, the Court ruled that the ballots could not be counted and the winners of the election could not be certified, pending final disposition of the underlying lawsuit.

The non-profit group coordinating the election–The Na’i Aupuni Foundation–did not count the votes, and in mid-December terminated the election.  So far, so good.  But then, Na’i Aupuni announced that all 196 Hawaiians who ran as candidates in the election can serve as delegates at the convention, which will begin on February 1, 2016.  So, while following the Court’s literal instruction not to count the votes and certify the winning candidates, Na’i Aupuni did not follow the intent of the Court to stop the process altogether.  The Court certainly sought to preserve the status quo until the Ninth Circuit decides the merits of the case.

Right before Christmas, attorneys for the plaintiffs filed a motion for civil contempt against, not only The Na’i Aupuni Foundation, but also against the State of Hawaii, the Governor of Hawaii, and numerous others.  The motion will be heard by the full Court sometime next year.

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