(c) Copyright 2015
Kenneth R. Conklin, Ph.D.
All rights reserved
=============
INDEX OF NEWS REPORTS AND COMMENTARIES DURING DECEMBER 2015.
December 1, 2015:
(1) Wall Street Journal Opinions Journal 3-minute video where staffer Kary Kissel interviews Heritage Foundation senior legal analyst Hans von Spakovsky about the Supreme Court injunction blocking the Na'i Aupuni election.
(2) Honolulu Star-Advertiser columnist Richard Borreca: Explaining Hawaii to mainland colleagues almost always results in a great puzzlement. ... explaining how the Na'i Aupuni election, which is so important to Native Hawaiian self-determination, is not really a state election just causes confusion."
(3) Kaua'i newspaper reports that Na'i Aupuni has lengthened the voting period until January 21, but article contains two falsehoods.
Dec 2:
(1) U.S. Supreme Court official order (vote 5-4) to maintain Justice Kennedy's injunction against Na'i Aupuni election until 9th Circuit Court has ruled on the lawsuit.
(2) SCOTUS blog analysis of the order, reviewing history of the case.
(3) Grassroot Institute of Hawaii news release about SCOTUS decision
(4) Honolulu Star-Advertiser breaking news report on SCOTUS decision
(5) Associated Press news report on SCOTUS decision, reviewing history of the case -- published in ABC News, The Garden Island News [Kaua'i], and probably many more
(6) Big Island Now online newspaper report on SCOTUS decision, reviewing history of the case
(7) Honolulu Civil Beat leftwing online newspaper tries to put a spin on the SCOTUS decision
(8) Al Jazeera America news report about SCOTUS injunction and background includes analysis by University of California Irvine election law expert Rick Hasen, who said it's "very unusual" for the high court to enjoin the counting of votes during an ongoing election. "I can't think of another instance where the Supreme Court has done that," Hasen said.
(9) Guam newspaper compares court case about race-based Na'i Aupuni election with court case about race-based Guam election regarding whether Guam should secede from U.S. Territorial status. News article was published December 2 in Guam, which was December 1 in Hawaii and therefore was before the Supreme Court decision upholding Justice Kennedy's injunction.
Dec 3:
(1) Honolulu Star-Advertiser print edition reports Supreme Court 5-4 decision to extend the injunction blocking the Na'i Aupuni election until the 9th Circuit Court of Appeals has decided the primary lawsuit.
(2) Ilya Shapiro of the Cato Institute celebrates Supreme Court decision
(3) YouTube video, 50 minutes, discussion about the Supreme Court case, featuring Michael Lilly, attorney for Grassroot Institute, and Kalama Niheu, an independence activist.
Dec 4:
(1) Judicial Watch weekly update focuses on Supreme Court victory
(2) Honolulu Star-Advertiser Letter to editor by ethnic Hawaiian secessionists laments the fact that their goal of stopping tribalization is being achieved not by them but by mainstream conservatives.
Dec 5:
(1) Al Jazeera lengthy article authored by reporter for Kaua'i Garden Island News is sympathetic to the Na'i Aupuni election and the independence movement as ways to overcome American oppression of Native Hawaiians.
(2) Letter to editor in Kaua'i newspaper: "Concerns arise about [Na'i Aupuni] election process"
Dec 6:
(1) Honolulu Star-Advertiser regular editorial commentator Richard Borreca says "Some major parts of the Na'i Aupuni election designed to set the stage for recognition of a Hawaiian government appear to be seriously unraveling." He points out some of the difficulties, and seems to be moderately glad the election is in trouble
(2) Guam newspaper feature article compares lawsuit seeking to block Guam race-based plebiscite on political status (statehood vs. independent nation status vs. compact of free association) with Hawaii lawsuit seeking to block race-based election to create a Hawaiian tribe.
Dec 8:
(1) Hawaii Public Radio provides reminders (i.e., free advertising) for both the Na'i Aupuni election and the U.S. Department of Interior request for comments on its proposal to create a regulation to recognize a Hawaiian tribe.
(2) "Above the Law" blog reports "Aloha, Racism! The Supreme Court Stops The Vote Count In A Hawaii Election That Excludes White People & Foreigners"
Dec 9: Hawaiian independence activists thank Grassroot Institute for lawsuit to block Na'i Aupuni election, despite disagreements over secession; and Grassroot Institute expresses hope for continued cooperation to defeat attempt to create Hawaiian tribe -- press release and video.
Dec 13:
(1) Forber OHA trustee and longtime independence activist Moanike'ala Akaka attacks Grassroot Institute as being opponent of justice for Native Hawaiians; says the Na'i Aupuni election is privately funded because the money comes from ceded land revenues (paid to OHA as land-use rent).
(2) Long, rambling article in far-left "TruthOut" magazine: "Native Americans Warn Native Hawaiians of the Dangers of Federal Recognition"
Dec 14:
(1) Honolulu Star-Advertiser editorial pushes people to send in testimony to Department of Interior in favor of proposed regulation to create Hawaiian tribe, before December 30; online comment by Ken Conklin outlines his 134-page testimony.
(2) Honolulu Civil Beat editorial: Supreme Court Rulings [Na'i Aupuni election and TMT telescope] Leave Hawaiian Concerns In Limbo.
Dec 15:
(1) Honolulu Star-Advertiser breaking news: Na'i Aupuni cancels election to avoid lengthy delays for litigation
(2) Na'i Aupuni news release announces cancelation of election and invitation to all 196 candidates to become delegates
(3) Hawaii Free Press, December 15, publishes email sent by Na'i Aupuni to the 196 candidates, explaining financial details of airfare, hotel, meals.
(4) Grassroot Institute news release: Cancellation of Nai Apuni Election a Victory for the Constitution. Grassroot Institute says Nai Aupuni is undercutting its own efforts to even look like a democratic process.
(5) Honolulu Civil Beat: Nai Aupuni Election Halted, But All Candidates Invited to Aha
(6) ABC network news, and a local newspaper in Victoria B.C. Canada, (and many others) publish identical Associated Press news report. "Suddenly taking away the opportunity to vote for delegates makes a mockery of any effort toward self-governance, said Native Hawaiian community advocate Trisha Keahaulani Watson-Sproat, who has been a vocal critic of Nai Aupuni.
"I don't know how anybody is supposed to take any of this seriously at this point," she said. "I mean, it has the integrity of a Costco membership at this point.""
(7) Hawaii Independent [secessionist online newspaper] article by University of Hawaii secessionist law professor essay "Na'i Aupuni's decision to allow all 196 candidates to participate in February's planned convention is an illegal attempt to circumvent the U.S. Supreme Court and proves that its purpose, all along, was to ensure federal recognition."
(8) Honolulu Civil Beat columnist "Dueling Lawsuits: Did Nai Aupuni Allow Too Few Voters? Too Many?" focuses on obscure recently-filed lawsuit by group of native Hawaiians who have more than 50% native blood quantum who claim the election should hsve been restricted to people with thst blood quantum.
Dec 16:
(1) Honolulu Star-Advertiser print edition more detailed news report "Native vote called off in reaction to top court"
(2) Article in both Kona and Hilo newspapers: "Na'i Aupuni terminates Native Hawaiian election, but delegate conference still going on for 'much-needed discussion'" includes brief stories about Hawaii Island delegates.
(3) Grassroot Institute email to members and friends warns that the effort to create a Hawaiian tribe remains ongoing, especially through the Department of Interior regulatory process and asks them to submit comments to the DOI proposal before December 30 deadline.
Dec 17: University of Hawaii Professor of Law Williamson Chang, an independence activist and candidate for the Na'i Aupuni election, says Na'i Aupuni decision to certify all 196 candidates as delegates to the convention, puts Na'i Aupuni and the delegates in contempt of Supreme Court injunction against counting the votes of certifying the winners. Chang says OHA passing government money through a private Na'i Aupuni group is "money laundering" that they say "cleansed the money of its state action 'taint'"
Dec 18:
(1) Honolulu Star-Advertiser another EDITORIAL pushing the Na'i Aupuni convention as a pathway to federal recognition of a Hawaiian tribe; Conklin online comment
(2) Honolulu Star-Advertiser regular commentator Richard Borreca says "Decision to forgo election toxic for sovereignty effort." Much sarcasm. Conklin online comment
(3) SCOTUS Blog "A new test on Hawaiis future?" describes actions now underway at 9th Circuit regarding the Akina v. Hawaii lawsuit and whether is will be dismissed or expanded.
(4) Pacific Legal Foundation Hawaii attorney Robert Thomas (Inverse Condemnation blog) summarizes events in the Akina lawsuit
Dec 19:
(1) Wall Street Journal commentary by Grassroot president Keli'i Akina describes lawsuit as a defense of the Aloha Spirit and defense of the U.S. Constitution against government sponsorship of race-based elections and racial separatism.
(2) Keli'i Akina appreciates UH Professor Williamson Chang's critique of Na'i Aupuni attempt to violate the 15th Amendment.
Dec 20:
(1) Independence activist filmmaker Anne Keala Kelly major commentary in Honolulu Star-Advertiser: "Na'i Aupuni's convention unlikely to craft anything credible or legal -- There are two teams in this game -- one is the state of Hawaii and the other is the Obama administration. Pitifully, though, they're both on the same side pushing one agenda: federal recognition for Hawaiians whether we want it or not."
(2) The Atlantic Magazine "Can the Constitution Govern America's Sprawling Empire?
The U.S. Supreme Court struggles to stretch a Constitution written for 13 coastal states to encompass non-contiguous states, dependent nations, insular areas, and a commonwealth." Article leads with huge photo of Native Hawaiian protest, and ends with brief description of Supreme Court injunction against Na'i Aupuni election.
Dec 21: 46 minute video conversation about lawsuit against Na'i Aupuni election, with Keli'i Akina (President of Grassroot Institute and plaintiff), Michael Lilly (former Attorney General of Hawaii and lawyer for Grassroot Institute, and Williamson Chang (University Professor of Law)
Dec 22:
(1) Honolulu Star-Advertiser news report (actually, advertisement): With one day remaining, Na'i Aupuni has gotten nearly 100 confirmations of delegates to participate in convention
(2) Honolulu Star-Advertiser breaking news report: "The plaintiffs in the lawsuit against the Native Hawaiian self-governance campaign filed a motion at the U.S. Supreme Court today in an effort to stop Na'i Aupuni's end-run around the election."
(3) Grassroot Institute news release about contempt charge it filed with Supreme Court, including link to the complaint and supporting documents.
(4) Honolulu Civil Beat breaking news about Grassroot Institute motion for contempt
(5) Na'i Aupuni one-paragraph news release reacting to contempt motion
Dec 23:
(1) Kaua'i and Hawaii Island newspapers report on Grassroot/JudicialWatch motion at U.S. Supreme Court to hold Na'i Aupuni and OHA in contempt of the Supreme Court's injunction
(2) Honolulu Star-Advertiser reports contempt motion in Supreme Court
(3) Na'i Aupuni official spreadsheet listing 151 delegates (and where they live) who have accepted invitation to what was formerly called a Constitutional Convention in February
(4) Attorney Robert Thomas, Inverse Condemnation blog, reports "More SCOTUS Action In Oprah/Everyone Wins Election"
(5) SCOTUS Blog reports motion for contempt, 3 remedies it seeks, and says it will NOT be handled as an emergency motion but will be considered at a future [regular weekly] Conference.
Dec 24:
(1) LEAKED EMAIL REVEALS 'AHA AGENDA -- List of activities and experts for the first week of the Na'i Aupuni constitutional convention
(2) 22 OF THE 152 NA'I AUPUNI CONVENTION PARTICIPANTS SEND EMAIL TO NA'I AUPUNI DEMANDING CHANGES TO THE AGENDA AND TO HOW THE MEETING IS CHARACTERIZED.
(3) Honolulu Star-Advertiser news report: "Na'i Aupuni proceeding despite numerous issues"
(4) Honolulu Star-Advertiser mini-editorial :Native Hawaiians battle over Na'i Aupuni's 'aha"
(5) The Lahaina News article sympathetic to secessionists: "Hawaiians see 'Aha as opportunity to restore the sovereign nation"
Dec 26: Secessionist "Essentials Training" conference at Episcopal cathedral scheduled for January 15 includes presentations by former Governor Waihe'e and organizers of Na'i Aupuni convention, focusing on "peace" and "reconciliation" and Mauna Kea issue.
Dec 27: Honolulu Star-Advertiser online poll: 53% say cancel the Na'i Aupuni convention; 28% say stop the convention until the lawsuit against it is resolved; 19% say continue with convention even without an election.
Dec 29:
(1) Grassroot Institute of Hawaii newsletter request: "One Day Left: Say "No!" to Interior Department Rule"
(2) Grassroot Institute of Hawaii, Testimony to Department of Interior regarding proposed regulation to recognize Hawaiian tribe, submitted December 29, 2015
END OF INDEX OF NEWS REPORTS AND COMMENTARIES DURING DECEMBER 2015.
================
** Full text of news reports and commentaries from December 2015.
http://www.wsj.com/video/opinion-journal-stopping-hawaiis-secessionists/948D3EE6-D1E8-4BC4-907B-8BB6BCD99E6D.html
Wall Street Journal Opinions Journal, December 1, 2015
3 minute video: Mary Kissel interviews Hans von Spakovsky
Stopping Hawaii's Secessionists
Heritage Foundation Senior Legal Fellow Hans von Spakovsky on the Supreme Court's stop to discriminatory elections on the island.
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https://www.staradvertiser.com/editorial/nai-aupuni-squares-off-with-the-u-s-constitution/
Honolulu Star-Advertiser, December 1, 2015
Na'i Aupuni squares off with the U.S. Constitution
by Richard Borreca [regular columnist]
Explaining Hawaii to mainland colleagues almost always results in a great puzzlement.
Saying that, "We just do things different in Hawaii" doesn't work, because folks do things different in Montpelier, Vt., or Pascagoula Parish in Louisiana.
But, explaining how the Na'i Aupuni election, which is so important to Native Hawaiian self-determination, is not really a state election just causes confusion.
The issue is of enough concern that today it is before the U.S. Supreme Court because last week Justice Anthony Kennedy ordered local officials not to count the ballots in the election to select delegates to a convention to come up with a plan for self-governance to be submitted to the U.S. Department of Interior.
The election was sponsored by the Office of Hawaiian Affairs, a state agency. It tried to meet the challenge of the 2000 Rice v. Cayetano Supreme Court decision, also written by Kennedy.
That ruling struck down the part of Hawaii's Constitution limiting the right to vote in OHA elections to those who were Native Hawaiian.
"A state may not deny or abridge the right to vote on account of race, and this law does so," wrote Kennedy, who said, "There is no room under the (15th) Amendment for the concept that the right to vote in a particular election can be allocated based on race."
The 15th Amendment came to be after the Civil War to preserve the right to vote, but now it comes back into play as Kennedy used it to toss the OHA exclusions.
"It is quite sufficient to invalidate a scheme which did not mention race but instead used ancestry in an attempt to confine and restrict the voting franchise," Kennedy said.
Add to that the question that if Na'i Aupuni is rebuilding a nation, precisely which nation is being rebuilt. Where do these bricks come from?
Hawaii as a nation before the 1893 overthrow was not a country ruled exclusively by Native Hawaiians; the courts and the legislature had people of different ancestries, so going back to a period before Western contact may define a population, but not the nation's citizens.
Hawaii may be unique, but it is not about being exclusively for a separate group.
Kennedy concluded his 2000 Rice v. Cayetano decision by first stressing the complexity of Hawaii.
"When the culture and way of life of a people are all but engulfed by a history beyond their control, their sense of loss may extend down through generations; and their dismay may be shared by many members of the larger community," he warned.
Then Justice Kennedy gave some advice that today should be considered as we struggle to figure out how form this new union.
"As the State of Hawaii attempts to address these realities, it must, as always, seek the political consensus that begins with a sense of shared purpose. One of the necessary beginning points is this principle: The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii."
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http://thegardenisland.com/news/local/voting-period-for-sovereignty-lengthened/article_d8e52672-305f-5403-83ef-a12ee838eb26.html
The Garden Island [Kaua'i] December 1, 2015
Voting period for sovereignty lengthened -- Deadline extended to Dec. 21
by Brittany Lyte - The Garden Island
LIHUE -- A Supreme Court order halting the counting of ballots in an election for Native Hawaiian sovereignty has prompted an extension of the voting period by another three weeks.
Na'i Aupuni, a private non-profit organizing the election for delegates to convene in Honolulu this winter to draft a constitution for Native Hawaiian self-governance, announced Monday that it will keep voting open through Dec. 21. Election results were previously to be announced Dec. 1.
"Because voters may not have cast their ballots over concerns and questions on the recent U.S. Supreme Court's decision to temporarily stop the vote count, we are extending the voting deadline to December 21, midnight Hawaii time," said Bill Meheula, legal counsel for Na'i Aupuni.
U.S. Supreme Court Justice Anthony Kennedy made the order Friday in answer to an emergency application from two non-Hawaiians, who aren't eligible to participate in the election, and four Hawaiians who argue that race-based voting is discriminatory under the 15th Amendment.
"This is a significant victory for us," said Keli'i Akina, president of the Grassroot Institute and one of the plaintiffs in the lawsuit brought by Judicial Watch. "After a full briefing, Justice Kennedy decided that the issue was worthy of further examination, and issued the injunction we requested. We are confident in our position, and excited at the possibility that it could go before the full court."
The stay on the counting of votes is in effect until further notice from the court.
A previous attempt to block the election on the grounds that it's discriminatory and therefore unconstitutional was shot down in October by U.S. District Court Judge Michael Seabright, who ruled that the election is private, and private elections are permitted to limit voter eligibility by race.
"This is an election for delegates to a private convention, among a community of indigenous people for purposes of exploring self-determination, that will not -- and cannot -- result in any federal, state, or local laws or obligations by itself," Seabright wrote.
Native Hawaiians are the only indigenous group in the U.S. without their own political structure.
Despite the pending uncertaintly about the vote count, Kauai's eligible voters -- those who are Native Hawaiian, at least 18 years of age and certified by the Native Hawaiian Roll Commission -- still have a chance to elect two candidates to seats on the 40-member delegation.
Kauai's candidates include Samuel Aea, a 56-year-old business owner; Kanani Kagawa Fu, Kauai County's 34-year-old assistant to the housing director; Mai Ling Haumea, who is 24 years old; Linda Ka'auwai-Iwamoto, a 72-year-old former homestead assistant for the Department of Hawaiian Homelands; and Kuuleialoha Santos, a 40-year-old descendent of salt makers in Hanapepe.
The goal for delegates at the planned convention is to draft a document that will form the foundation of a new government by and for Native Hawaiians.
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** Ken Conklin's online comment:
There are two falsehoods in this article: one that's the fault of reporter Brittany Lyte and the other that's the fault of attorney Bill Meheula.
Ms. Lyte reported: "Native Hawaiians are the only indigenous group in the U.S. without their own political structure." That's FALSE. Here's the truth: There are hundreds of American Indian groups which are seeking federal recognition as tribes and have been ignored or rejected because they simply don't meet the requirements -- exactly like ethnic Hawaiians don't meet the requirements. Here's a newspaper report published on November 26, 2015 describing several tribes in Louisiana which are in that exact situation. This newspaper article provides proof that "Native Hawaiians" are NOT being discriminated against or oppressed by being "the only" group not granted self-government or federal recognition. So please STOP saying that.
http://tinyurl.com/qep2tmf
Here's one of many significant excerpts from the Louisiana news report:
"The Houma tribe pushed for federal recognition starting before World War II. Rejected by the BIA in 1994, the tribe has been appealing since. In the 90s, Louisiana politicians even sought tribal recognition through Congress but failed."
Bill Meheula, legal counsel for Na'i Aupuni, said: "Because voters may not have cast their ballots over concerns and questions on the recent U.S. Supreme Court's decision to temporarily stop the vote count, we are extending the voting deadline to December 21, midnight Hawaii time." NO Bill, that's false and you know it. What's true is that the number of people voting in the Na'i Aupuni election has been dismally small, and embarrassing. So the organizers are allowing 3 more weeks to get more voters, and will probably spend big bucks for ads in newspapers, TV, and radio. Ethnic Hawaiians are smart and know that the Supreme Court injunction did not stop people from voting, it only stopped the organizers from counting the votes and certifying the losers (er, winners). Most ethnic Hawaiians are not racists, which is why 4/5 of them did not sign up to vote in the racist election and most of those whose names were on the voter list are boycotting it.
-----------------------
http://www.supremecourt.gov/orders/courtorders/120215zr_k5fl.pdf
U.S. Supreme Court, December 2, 2015 ORDER LIST (577 U.S.) [contains only one order]
15A551
WEDNESDAY, DECEMBER 2, 2015
ORDER IN PENDING CASE
AKINA, KELI'I, ET AL. V. HAWAII, ET AL.
The application for injunction pending appellate review presented to Justice Kennedy and by him referred to the Court is granted. Respondents are enjoined from counting the ballots cast in, and certifying the winners of, the election described in the application, pending final disposition of the appeal by the United States Court of Appeals for the Ninth Circuit.
Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.
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http://www.scotusblog.com/2015/12/hawaii-election-limit-extended/
Scotus Blog, December 2, 2015 at 4:34 PM EST
Lyle Denniston Independent Contractor Reporter
Hawaii election limit extended
Splitting five to four, the Supreme Court on Wednesday afternoon further extended an order that will keep the results of a Hawaii election from being known or approved while a court test of the balloting rules goes on. In a brief order,
http://www.scotusblog.com/wp-content/uploads/2015/12/15A551-Akina-v-Hawaii-Order.pdf
the Court blocked the counting of the ballots and certification of the results at least until a federal appeals court rules on the election's validity.
A group of Hawaii residents has complained that voting in the election is limited to those who can claim ancestry as "native Hawaiians." They argue that this is a race-based exclusion in violation of the Fifteenth Amendment. The sponsors of the election insist that it is a private affair, not subject to constitutional limitations.
The order split the Court along ideological lines, with the more conservative Justices in the majority and the more liberal ones in dissent. The state of Hawaii and the Obama administration strongly support the election as now being conducted as a prelude to the creation of a new independent nation, like an Indian tribe, within Hawaii. The voters will be choosing delegates to a convention to write a new constitution for a tribe-like, sovereign nation.
The Court did not disclose the vote on the order, but it would have taken five votes to be approved. Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas apparently were in the majority, because the four dissenters were named: Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.
Last Friday, Justice Kennedy, in his role as Circuit Justice for the Ninth Circuit, which includes Hawaii, had issued a temporary order against counting and certification of results until the Justices could consider the plea for delay of the results during the challengers' appeal. The full Court presumably considered the issue at a private Conference held after this morning's oral argument.
Originally, the election -- which started on a continuous basis on November 1 -- was scheduled to end this past Monday, November 30. However, the organization that is managing the election, believing that Justice Kennedy's order in the waning days of balloting would discourage some from voting, extended the balloting through midnight (Hawaii time) December 21.
The extension of balloting was announced in a press release on Monday. A copy of that press release
http://www.scotusblog.com/wp-content/uploads/2015/12/Akina-v-Hawaii-No-15A551-Notice.pdf
was sent to the Court on Wednesday to notify it, but no mention was made of that in the Court's order.
The Court did not issue an opinion explaining the order, but it appeared that the majority was inclined to believe that the election was not truly a private affair, but was instead officially ordered and at least partly financed by the state, thus raising the question whether it could constitutionally be confined along an ethnic or racial line. And it appeared that the dissenting Justices were at least partially persuaded that this is a matter relating only to self-determination of a cohesive ethnic community. That is the argument made for the election and constitutional convention by the Obama administration and the state of Hawaii.
The challengers to the balloting limitation are relying mainly upon a seven-to-two decision by the Court in the 2000 case of Rice v. Cayetano, striking down a similar limitation for the election of officials in a state agency, the Office of Hawaiian Affairs. This time, supporters of the election contend it is for the selection of delegates to a convention among ethnic Hawaiians only, to draft a constitution for the proposed new nation.
Five members of the current Court took part in the 2000 decision, along with now-retired colleagues. Justice Kennedy wrote the majority ruling, joined by Justices Scalia and Thomas. Justice Breyer supported the result, but not the reasoning of the majority. Justice Ginsburg dissented.
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http://us3.campaign-archive1.com/?u=f9a371d0547f107d938233d66&id=45fbfd0d6f&e=4a7cf86850
Grassroot Institute of Hawaii, December 2, 2015, news release
US Supreme Court Upholds Injunction Against State-Sponsored, Race-based Election
Grassroot Institute Says Decision Affirms the Constitution and Aloha Spirit
HONOLULU, HAWAII -- December 2, 2015 -- Today, the U.S. Supreme Court affirmed the decision of Justice Anthony Kennedy to halt the counting of ballots or certification of results in Hawaii's race-based Native Hawaiian election, pending final disposition of the appeal of Akina v. Hawaii in the Ninth Circuit Court of Appeals. In applauding the ruling, Grassroot Institute of Hawaii President Keli'i Akina, Ph.D. stressed that it was a significant victory for all citizens of Hawaii, and could be the first step towards the end of the state's wasteful and divisive nation-building effort.
"The ultimate winners are all people of Hawaii, including Native Hawaiians, who do not support the wasting of millions of dollars of public funds that have been diverted from the real needs of Hawaiians for housing, jobs, education, and health care," said Dr. Akina, who is also a plaintiff in the case brought by Judicial Watch. "This is a powerful step in holding the Office of Hawaiian Affairs and the Native Hawaiian Role Commission accountable for their unconstitutional and un-Hawaiian attempts to divide people based on race."
"We are pleased that a majority of the Supreme Court justices granted our motion and stopped Na'i Aupuni from counting any votes until after our appeal to the 9th Circuit," added Michael A. Lilly, former Hawaii Attorney General and attorney for the plaintiffs. "One requirement for our motion was to show that we were likely to prevail on the merits of our claims. In short, the Na'i Aupuni election is an unconstitutional race-based election being conducted by the State of Hawaii. We are confident that we will ultimately prevail."
"The fact that OHA and the state have poured millions of dollars into this unconstitutional election prompts some very serious questions about how the needs of Hawaiians are being served," stated Dr. Akina. "It is time for the state to stop this wasteful and divisive nation-building effort and pay attention to the real needs of Hawaiians, not the special interests of an entrenched elite."
The Supreme Court order can be seen at:
http://new.grassrootinstitute.org/wp-content/uploads/2015/10/15A551-Akina-v-Hawaii-Order.pdf
To see all the filings and documents associated with this case, go to:
http://new.grassrootinstitute.org/2015/10/akina-v-hawaii-the-documents/
---------------------
https://www.staradvertiser.com/breaking-news/supreme-court-blocks-native-hawaiian-election-vote-count/
Honolulu Star-Advertiser, December 2, 2014, Breaking News at 12:04 PM HST
Supreme Court blocks Native Hawaiian election vote count
By Timothy Hurley
The U.S. Supreme Court today formally granted an injunction blocking the Na'i Aupuni Hawaiian self-governance election while the 9th Circuit Court of Appeals considers the case challenging it.
Under the order, Na'i Aupuni officials are prohibited from counting ballots and certifying the winners of the election until theAppellate court makes a decision.
The order was granted by a narrow court majority, with Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and ElenaKagan indicating that would deny the application.
"The decision by the supreme court shows that a majority of the justices find our legal case compelling," Keli'i Akina,president of the Grassroot Institute of Hawaii, said in a statement.
Akina is one of six people suing the state for running an illegal, race-based election.
"This is a powerful step in holding the Office of Hawaiian Affairs and Native Hawaiian Role Commission accountable for their unconstitutional and un-Hawaiian attempts to divide people based on race," he said.
Native Hawaiians continue to vote for delegates to a convention next year to come up with a self-governance document to be ratified by Native Hawaiians.
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http://abcnews.go.com/US/wireStory/supreme-court-blocks-native-hawaiian-election-vote-count-35538924
ABC News, Dec 2, 2015, 5:53 PM ET
Also, identical content attributed to Associated Press (no mention of Jennifer Kelleher)
http://thegardenisland.com/news/state-and-regional/supreme-court-blocks-native-hawaiian-election-vote-count/article_a6a1b7a8-814d-5454-aceb-c95122a2df19.html
The Garden Island News [Kaua'i]
Supreme Court Blocks Native Hawaiian Election Vote Count
By JENNIFER SINCO KELLEHER, ASSOCIATED PRESS HONOLULU
The U.S. Supreme Court on Wednesday blocked votes from being counted in a unique election that's considered a major step toward self-governance for Native Hawaiians.
The high court granted an injunction requested by a group of Native Hawaiians and non-Hawaiians challenging the election. They argue Hawaii residents who don't have Native Hawaiian ancestry are being excluded from the vote, in violation of their constitutional rights.
The order blocks the counting of votes until at least the 9th U.S. Circuit Court of Appeals issues its ruling. The group suing to stop the election appealed a district court's ruling allowing voting to proceed.
The court's four liberal justices said they would have allowed votes to be counted while the appeal plays out.
Justice Anthony Kennedy on Friday issued a temporary stay blocking the vote count and stopping certification of any winners pending further direction from him or the entire court.
Voting was scheduled to end Monday, but after Kennedy's ruling Nai Aupuni, the organization leading the election process, extended voting until Dec. 21. The group said voters may not have cast ballots over concerns and questions about Kennedy's order.
Wednesday's ruling was issued soon after the group challenging the election alerted the Supreme Court about the extension.
"The U.S. Supreme Court decision to uphold Justice Kennedy's injunction halting a Hawaii state-sponsored, race-based election is a victory for the Constitution and the Aloha Spirit," Kelii Akina, one of the Native Hawaiian plaintiffs, said in a statement.
Nai Aupuni leaders didn't immediately comment.
Native Hawaiians are voting to elect delegates for a convention next year to come up with a self-governance document to be ratified by Native Hawaiians. The group's lawsuit challenging the election argues that the state shouldn't be involved in a race-based election. The state argues it's not involved in the election.
Former U.S. Sen. Daniel Akaka spent about a dozen years trying to get a bill passed that would give Native Hawaiians the same rights already extended to many Native Americans and Alaska Natives.
When it became clear that wouldn't happen, the state passed a law recognizing Hawaiians as the first people of Hawaii and laid the foundation for Native Hawaiians to establish their own government. The governor appointed a commission to produce a roll of qualified Native Hawaiians interested in participating in their own government.
Some of the plaintiffs in the lawsuit say their names appear on the roll without their consent. The non-Hawaiians in the lawsuit say they're being denied participation in an election that will have a big impact on the state.
The lawsuit points to nearly $2.6 million from the Office of Hawaiian Affairs, a public agency tasked with improving the wellbeing of Native Hawaiians, as evidence of the state's involvement.
"This is a powerful step in holding the Office of Hawaiian Affairs and Native Hawaiian Roll Commission accountable for their unconstitutional and un-Hawaiian attempts to divide people based on race," Akina's statement said.
U.S. District Judge J. Michael Seabright in Honolulu ruled in October the purpose of the private election is to establish self-determination for the indigenous people of Hawaii. Those elected won't be able to alter state or local laws, he said.
The challengers appealed and also filed an emergency motion to block the votes from being counted. The 9th U.S. Circuit Court of Appeals denied the emergency motion, prompting the challengers to appeal to the high court.
---------------------
http://bigislandnow.com/2015/12/02/u-s-supreme-court-blocks-native-hawaiian-election/
Big Island Now online newspaper, December 2, 2015
U.S. Supreme Court Blocks Native Hawaiian Election
by Jamilia Epping
The United States Supreme Court has blocked the counting of votes in the Native Hawaiian election hosted by Na'i Aupuni.
On Wednesday, the high court granted an injunction requested by a group of Native Hawaiians and non-Hawaiians challenging the election, according to information reported by the Associated Press. The block orders the halt of vote counting until the Ninth U.S. District Court of Appeals issues its ruling on the lawsuit challenging the election.
Last Friday, U.S. Supreme Court Justice Anthony Kennedy declared a temporary stay,
http://bigislandnow.com/2015/11/27/supreme-court-orders-stay-on-native-hawaiian-election/
preventing the counting of votes and announcement of the 40 delegates that would be elected to a constitutional convention, or 'aha.
The temporary stay followed a Nov. 19 rejection of a challenge
http://bigislandnow.com/2015/11/19/second-attempt-to-stop-native-hawaiian-election-rejected/
to U.S. District Court Judge K. Michael Seabright's ruling against litigation filed claiming that the election violated their First Amendment rights.
Judge Seabright dismissed the litigation, noting that the election did not have state involvement.
The temporary stay announcement on Nov. 27 was a contributing factor to Na'i Aupuni's decision to extend the voting period through Dec. 21.
On Monday, Na'i Aupuni Legal Counsel Willian Meheula said in a statement saying that "Because voters may not have cast their ballots over concerns and questions on the recent U.S. Supreme Court's decision to temporarily stop the vote count, we are extending the voting deadline to December 21, midnight Hawai'i time."
The election would be a first step towards potential Native Hawaiian self-governance.
Big Island Now will bring you more information as it becomes available.
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http://www.civilbeat.com/2015/12/u-s-supreme-court-blocks-ballot-count-in-hawaiians-only-election/
Honolulu Civil beat, December 2, 2015, about 3 PM HST
U.S. Supreme Court Blocks Ballot Count In Hawaiians-Only Election
Nai Apuni will have to wait for the 9th Circuit Court of Appeals to rule on the Grassroot Institute's legal challenge.
By Chad Blair
The U.S. Supreme Court on Wednesday blocked the counting of ballots until a lower court takes action on a related lawsuit.
The ruling was a blow to supporters of an election of delegates to a Native Hawaiian convention on self-governance, but a big victory to those who oppose it.
The granting of an injunction requested by the nonprofit Grassroot Institute of Hawaii means that the nonprofit, independent Nai Apuni cannot publicly identify the winners of its election. On Tuesday, the group had extended the voting period until Dec. 21.
Instead, the U.S. 9th Circuit Court of Appeals must first make a ruling in Akina v. Hawaii, a challenge to the constitutionality of Nai Apuni's election, which was funded by a quasi-governmental agency. The lower court last month rejected a request from Grassroot Institute to stop the election while the case is on appeal.
The high court's vote Wednesday was 5-4, with Associate Justice Anthony Kennedy siding with the four more conservative justices, including Chief Justice John Roberts. It was Kennedy who initially ordered a halt to the vote count Friday, three days before Nai Apuni was scheduled to end the monthlong voting process and announce the names of 40 convention delegates.
More than 200 candidates are vying for the delegate positions, and about 90,000 qualified Hawaiian voters are eligible to complete the ballots either online or by mail. It's unclear exactly how many have voted or will vote.
Grassroot Institute of Hawaii President Kelii Akina called the court's decision a significant victory for all Hawaii citizens, and a possible first step toward ending what he calls a wasteful effort.
"The ultimate winners are all people of Hawaii, including Native Hawaiians, who do not support the wasting of millions of dollars of public funds that have been diverted from the real needs of Hawaiians for housing, jobs, education, and health care," said Akina, who is also a plaintiff in the case that was brought by the conservative Judicial Watch. "This is a powerful step in holding the Office of Hawaiian Affairs and the Native Hawaiian Role Commission accountable for their unconstitutional and un-Hawaiian attempts to divide people based on race."
Said Michael Lilly, former Hawaii attorney general and a lawyer for the plaintiffs: "One requirement for our motion was to show that we were likely to prevail on the merits of our claims. In short, the Nai Aupuni election is an unconstitutional race-based election being conducted by the State of Hawaii. We are confident that we will ultimately prevail."
However, Nai Aupuni says it remains confident that the law is on its side.
In a statement released after the injunction was issued, Nai Aupuni said it "stands by its commitment to provide a legal process for Native Hawaiians to elect leaders to convene to reorganize a government. We believe the process aligns with the U.S. Constitution and that the U.S. 9th Circuit Court of Appeals ultimately will let the election process proceed. We will ask the appeals court to expedite the hearing so that votes can be counted and the constitutional convention, or 'aha, can proceed this summer."
Nai Aupuni also urged eligible voters to still cast ballots, stating, "Your vote is the mana (power) to unify us."
A Private Election
In late October, U.S. District Court Judge Michael Seabright in Honolulu rejected the Grassroot Institute's lawsuit that argues the Nai Aupuni election violates the U.S. Constitution. Seabright determined that Nai Aupuni was conducting a private election separate from the state.
Now it is up to the 9th Circuit to weigh in. Legal observers say it is possible that Akina v. Hawaii might eventually lead to oral arguments in the U.S. Supreme Court.
Nai Apuni has its share of detractors, not only those who say the election is unconstitutional but others who contend that an election of delegates and the holding of a convention is not the appropriate way to determine Native Hawaiian self-governance.
Supporters, however, say the convention is perhaps the best chance for self-determination. It comes after a decade of unsuccessful efforts to pass the so-called Akaka Bill on federal recognition of Hawaiians in Congress, and just weeks after the U.S Department of the Interior proposed rules for dealing directly with a potential Hawaiian government.
Hawaii was a kingdom until its monarchy was overthrown in 1893, and the nation was annexed by the U.S. in 1898. After a territorial period, Hawaii became the 50th state in 1959.
Arguments persist in some circles as to whether Hawaii is actually part of the U.S. or is instead illegally occupied by it. The Nai Aupuni convention, say organizers, could lead to a path toward self-governance or even independence.
----------------------
http://america.aljazeera.com/articles/2015/12/2/supreme-court-blocks-native-hawaiian-election-vote-count.html
Al Jazeera America, December 2, 2015, 7:45 PM EST
Supreme Court blocks Native Hawaiian election vote count
Ruling blocks votes from being counted in unique election considered a major step toward Native Hawaiian self-governance
The U.S. Supreme Court on Wednesday blocked votes from being counted in a unique election that's considered a major step toward self-governance for Native Hawaiians.
The high court granted an injunction requested by a group of Native Hawaiians and non-Hawaiians challenging the election. They argue that Hawaii residents who don't have Native Hawaiian ancestry are being excluded from the vote, in violation of their constitutional rights.
The order blocks the counting of votes until at least the 9th U.S. Circuit Court of Appeals issues its ruling. The group suing to stop the election appealed a district court's ruling allowing voting to proceed.
University of California Irvine election law expert Rick Hasen said it's "very unusual" for the high court to enjoin the counting of votes during an ongoing election.
"I can't think of another instance where the Supreme Court has done that," Hasen said. "The court has stopped ... the recounting of votes, for example most famously in Bush vs. Gore" in the 2000 presidential election.
There have been cases where the court has stopped elections from going forward, Hasen said, "but it's hard to think of a situation where the court says 'keep the voting going, but don't count the votes or announce the results.'"
The court's four liberal justices said they would have allowed votes to be counted while the appeal plays out.
Justice Anthony Kennedy on Friday issued a temporary stay blocking the vote count and stopping certification of any winners pending further direction from him or the entire court.
Voting was scheduled to end Monday, but after Kennedy's ruling Na'i Aupuni, the organization leading the election process, extended voting until Dec. 21. The group said voters may not have cast ballots over concerns and questions about Kennedy's order.
"Today's order only continues the existing hold on counting and certifying votes until the Ninth Circuit appeal is concluded," Hawaii Attorney General Douglas Chin said in a statement. "The State has consistently supported Native Hawaiian self-governance. This is an independent election that may help chart the path toward a Native Hawaiian government."
Wednesday's ruling was issued soon after the group challenging the election alerted the Supreme Court about the extension.
"The U.S. Supreme Court decision to uphold Justice Kennedy's injunction halting a Hawaii state-sponsored, race-based election is a victory for the Constitution and the Aloha Spirit," Kelii Akina, one of the Native Hawaiian plaintiffs, said in a statement.
"Na'i Aupuni stands by its commitment to provide a legal process for Native Hawaiians to elect leaders to convene to reorganize a government. We believe the process aligns with the U.S. Constitution and that the U.S. Ninth Circuit Court of Appeals ultimately will let the election process proceed," Na'i Aupuni leaders said in a statement.
"Native Hawaiian self-governance has been discussed for over 120 years. We encourage voters to cast their ballots before the Dec. 21 deadline. Your vote is the mana to unify us."
Native Hawaiians are voting to elect delegates for a convention next year to come up with a self-governance document to be ratified by Native Hawaiians. The group's lawsuit challenging the election argues that the state shouldn't be involved in a race-based election. The state argues it's not involved in the election.
Former U.S. Sen. Daniel Akaka spent about a dozen years trying to get a bill passed that would give Native Hawaiians the same rights already extended to many Native Americans and Alaska Natives.
When it became clear that wouldn't happen, the state passed a law recognizing Hawaiians as the first people of Hawaii and laid the foundation for Native Hawaiians to establish their own government. The governor appointed a commission to produce a roll of qualified Native Hawaiians interested in participating in their own government.
Some of the plaintiffs in the lawsuit say their names appear on the roll without their consent. The non-Hawaiians in the lawsuit say they're being denied participation in an election that will have a big impact on the state.
The lawsuit points to nearly $2.6 million from the Office of Hawaiian Affairs, a public agency tasked with improving the wellbeing of Native Hawaiians, as evidence of the state's involvement.
"This is a powerful step in holding the Office of Hawaiian Affairs and Native Hawaiian Roll Commission accountable for their unconstitutional and un-Hawaiian attempts to divide people based on race," Akina's statement said.
U.S. District Judge J. Michael Seabright in Honolulu ruled in October the purpose of the private election is to establish self-determination for the indigenous people of Hawaii. Those elected won't be able to alter state or local laws, he said.
The challengers appealed and also filed an emergency motion to block the votes from being counted. The 9th U.S. Circuit Court of Appeals denied the emergency motion, prompting the challengers to appeal to the high court.
The Associated Press
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http://www.guampdn.com/story/news/2015/12/01/native-hawaiian-election-halted/76597130/
Pacific Daily News -- GUAM, December 2, 2015
Native Hawaiian election halted
by Cameron Miculka, cimiculka@guampdn.com
The U.S. Supreme Court last week temporarily stopped Hawaii from counting ballots in a recent election of Native Hawaiian delegates over concerns by some the vote violates the U.S. Constitution by discriminating against voters who aren't native Hawaiians.
The delegates, once elected, would prepare a document for self-governance by native Hawaiians.
Guam plans to hold a political status vote, limited to the island's indigenous Chamorros, as defined by Guam law. The non-binding vote, or plebiscite, would be used to determine whether the island's Chamorros prefer statehood, free association or independence. Guam currently is an unincorporated territory of the United States.
The Guam vote is being challenged in federal court for allegedly discriminating against the island's non-Chamorro voters. The case, filed by Guam resident Arnold Davis, who isn't Chamorro, is scheduled to go to trial next July.
The complaint about the Native Hawaiian vote was filed in Hawaii's federal court this past August, when six Hawaiians sued the state government's leaders, as well as the organizations running the election.
The Hawaii election's voter rolls are restricted to those descended from "the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands." That's similar to the restriction placed on who can enroll in the Guam Decolonization Registry for the pending Guam plebiscite -- "native inhabitants of Guam."
Although local law doesn't explicitly restrict registration based on ethnicity or ancestry, it defines native inhabitants of Guam as anybody who "became U.S. citizens by virtue of the authority and enactment of the 1950 Organic Acts of Guam and descendants of those persons."
** Photo caption
Plantiff Arnold Davis sits alongside his wife, Noni Davis, before the start of a Ninth Circuit Court of Appeals Circuit hearing at the U.S. District Court in Hagatna in August 2014. (Photo: PDN file)
Davis, who doesn't meet the qualifications to register, has argued the restriction discriminates on racial grounds.
Although the Hawaii election was being organized through a nonprofit organization, the case's plaintiffs argued it was financed and sponsored by the Hawaiian government's Office of Hawaiian Affairs, citing in their complaint a grant given to the organization to run the election. The U.S. Interior Department, siding with Hawaii on the issue, said native tribes have consistently limited voting in tribal elections to natives, adding there is "no principled basis" for treating this case differently.
In October, the federal judge hearing the case ruled the election could go forward, noting the election won't elect any state officials or enact any change in the state government. Ruling it a "private election," he said that even if a Native Hawaiian government entity is created, "the result would most certainly not be a state entity," court documents state.
The 9th Circuit Court of Appeals in November also refused to halt the election, but on Friday the U.S. Supreme Court stepped in.
In an order issued by Associate Justice Anthony Kennedy, the court ruled no ballots could be counted, pending further action by the Supreme Court. The Supreme Court's freeze on the counting of ballots isn't a decision on whether either side of the case has any merit. In his order to freeze the ballot count, Kennedy indicated more orders could be forthcoming.
Locally, Chief Judge Frances Tydingco-Gatewood has yet to rule on the two motions before her for summary judgment in Guam's plebiscite case.
The Office of the Attorney General has said the case shouldn't go to trial, and has asked judge to rule in the government's favor.
Davis also has argued he should win the case without having to go to trial.
If Davis is successful, it would bar any future plebiscite from going forward with the current restrictions in place.
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https://www.staradvertiser.com/hawaii-news/u-s-high-court-halts-balloting-for-delegates-to-hawaiian-body/
Honolulu Star-Advertiser, December 3, 2015
U.S. high court halts balloting for delegates to Hawaiian body
By Timothy Hurley
The U.S. Supreme Court on Wednesday formally granted an injunction blocking the Na'i Aupuni Hawaiian self-governance election while the 9th U.S. Circuit Court of Appeals considers the case challenging it.
Under the order, Na'i Aupuni officials are prohibited from counting ballots and certifying the winners of the election until the appellate court makes a decision.
"The decision by the Supreme Court shows that a majority of the justices find our legal case compelling," Keli'i Akina, president of the Grassroot Institute of Hawaii, said in a statement.
In its application for the injunction, the plaintiffs argued that "enormous political, social and economic consequences are at stake. The delegates chosen through this election will decide whether to adopt a new government that will affect every individual living in the state, as well as hundreds of thousands of individuals identified as Native Hawaiians."
The plaintiffs also said that there would be "no remedy if the votes in this election are counted and the results certified. This election cannot be undone."
The order was granted by a narrow court majority, with the dissenting liberal justices -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- indicating that they "would deny the application (for injunction)," according to the order.
Akina is one of six people suing the state for running what they call an illegal, race-based election.
"This is a powerful step in holding the Office of Hawaiian Affairs and Native Hawaiian Roll Commission accountable for their unconstitutional and un-Hawaiian attempts to divide people based on race," he said.
Native Hawaiians continue to vote for delegates to a convention next year to come up with a self-governance document to be ratified by Native Hawaiians.
The nonprofit Na'i Aupuni issued a statement Wednesday in response to the court ruling:
"Na'i Aupuni stands by its commitment to provide a legal process for Native Hawaiians to elect leaders to convene to reorganize a government. We believe the process aligns with the U.S. Constitution, and that the U.S. 9th Circuit Court of Appeals ultimately will let the election process proceed. We will ask the appeals court to expedite the hearing so that votes can be counted and the constitutional convention, or 'Aha, can proceed this summer."
The statement continued: "Native Hawaiian self-governance has been discussed for over 120 years. We encourage voters to cast their ballots before the Dec. 21 deadline. Your vote is the mana to unify us."
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http://www.cato.org/blog/supreme-court-blocks-race-based-election
Cato Institute blog, December 3, 2015
Supreme Court Blocks Race-Based Election
By ILYA SHAPIRO
Readers have surely been disappointed at this blog's recent dearth of Hawaiian constitutional news, but not to fear: the Aloha State doesn't go too long without generating legal controversies worthy of national attention. The latest development comes from the Supreme Court, which blocked
http://www.scotusblog.com/2015/12/hawaii-election-limit-extended/
an election with racial qualifications that could eventually establish a new government for so-called "native Hawaiians." (See this background on the ongoing legislative and regulatory saga surrounding this movement for ethnic separatism.)
http://www.cato.org/blog/will-congress-allow-hawaii-expand-racial-discrimination
The voters in the disputed election, once they establish certain ancestral lineage and affirm their belief in the "unrelinquished sovereignty of the Native Hawaiian people," are picking delegates to a convention that would write a new constitution for a new nation. The Obama administration supports this process as a prelude to the creation of a new government within but separate from the state of Hawaii, akin to an Indian tribe (which is an inappropriate analog).
http://www.cato.org/publications/commentary/color-their-skin-or-content-their-character
A group of Hawaiians, led by Grassroot Institute president Keli'i Akina, sued to try to stop this election, which is being run by a private organization contracted by the state Office of Hawaiian Affairs. (Full dislosure: I'm on Grassroot's very informal board of scholars.) While several of the plaintiffs have the qualifying ancestry, they complain that the race-based exclusion violates the Fifteenth Amendment. The election's sponsors insist that it's a private affair and therefore not subject to constitutional limitations. (See here
http://new.grassrootinstitute.org/2015/10/akina-v-hawaii-the-documents/
and here
http://www.nationalreview.com/bench-memos/426699/hawaii-election-akina
for more background.)
The district court had inexplicably allowed the balloting to proceed and the U.S. Court of Appeals for the Ninth Circuit affirmed that ruling. Justice Kennedy, as the circuit justice for the Ninth Circuit, temporarily enjoined the counting and certification of ballots on Friday, and now the Court has issued a short order preserving the injunction pending the full appeal in the lower court.
Unfortunately, the vote on this emergency injunction application was 5-4, with Justices Ginsburg, Breyer, Sotomayor, and Kagan dissenting. This result presumably maps the underlying views on the merits of the case, regarding the constitutionality of this race-based election. That's disappointing given some recent history: In the 2000 case Rice v. Cayetano, the Supreme Court ruled 7-2 against such "native Hawaiian" voting qualifications and in 2009, the Court reached
http://www.cato.org/blog/court-embraces-spirit-aloha
a unanimous ruling
http://www.scotusblog.com/case-files/cases/hawaii-et-al-v-office-of-hawaiian-affairs-et-al/
against the state Office of Hawaiian Affairs (OHA) on a related property-rights dispute (in which Cato filed a brief).
http://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_07_08_07_1372_PetitionerAmCuPLFCATOInstCEO.authcheckdam.pdf
That era of good feelings is now apparently over.
Akina v. Hawaii will now continue on appeal and you can bet that Cato will be filing briefs. Perhaps a summary of our argument can be boiled down to the following: "While Hawaii is far away from the rest of the United States, the Constitution - including the 14th and 15th Amendments - still applies there."
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https://www.youtube.com/watch?v=JPm-COc92NM&feature=youtu.be
ThinkTech video, December 3, 2015
Sovereignty Narratives Coming to a Head
A joint Skype program between the ThinkTech studio in Honolulu and Yale Law School, Our studio guests are Dr. Kalamaoka'aina Niheu and Michael Lilly, Esq.. Our counterpart guests at Yale are Gene Fidell and his class in Indian Law. We will discuss Sovereignty, the current litigation and the recent order of the Department of the Interior.
50 minutes. Host is Jay Fidell
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http://www.judicialwatch.org/press-room/weekly-updates/jw-supreme-court-victory/
JudicialWatch weekly update December 4, 2015
Judicial Watch Scores Supreme Court Win
How about a little good news? Your Judicial Watch, on behalf of a group of patriotic Americans, scored a major victory for the U.S. Constitution and national unity before the United States Supreme Court. This week, we convinced the Supreme Court to issue an injunction
http://www.judicialwatch.org/document-archive/akina-v-hawaii-no-scotus-injunction-15a551/
halting a race-based "Native Hawaiian-only" election in Hawaii. In August, Judicial Watch filed a federal lawsuit on behalf of the five Hawaiian residents and one Texas resident of Hawaiian descent who opposed the discriminatory election process (Keli'i Akina, et al. v. The State of Hawaii, et al. (No. 1:15-cv-00322)).
http://www.judicialwatch.org/?p=76761
The Supreme Court victory is remarkable. The JW statement issued to the press puts it all together:
"The Supreme Court today issued an injunction that put a hard stop to the race-based, separatist election in Hawaii that violated the 'fundamental constitutional rights' of our American citizen clients. Today's ruling is a historic setback to the State of Hawaii and the Obama administration, which misused public monies to push a racially discriminatory election. President Obama and Hawaiian political leaders should be called to account for their cynical support of a race-based election that violated numerous civil rights laws and the U.S. Constitution. Our clients are brave patriots who took a public stand on behalf of the rule of law. The High Court agreed our clients had an indisputable right to this relief and it is wonderful to see their faith in our Constitution vindicated by today's Supreme Court ruling. In addition, Judicial Watch's hundreds of thousands of supporters deserve thanks for providing the voluntary support that allowed our team of hard-working attorneys to stop this corrupt and dangerous election. Kudos also to the Grassroot Institute of Hawaii,
http://new.grassrootinstitute.org/
a Hawaii-based think tank, that gave invaluable assistance to our efforts."
After we filed our lawsuit over the issue in August, we quickly asked the court for a preliminary injunction
http://www.judicialwatch.org/press-room/press-releases/judicial-watch-files-preliminary-injunction-to-halt-native-hawaiian-only-separatist-election/
to stop the vote that had been scheduled for November 2015. Our lawyers argued that our clients would be denied the right to vote either because of their race or their political views – in direct violation of the U.S. Constitution and the Voting Rights Act of 1965. Hawaii's Act 195 authorizes the Native Hawaiian Roll Commission (NHRC) to create a list of "Native Hawaiians" who would be eligible to elect delegates to a planned constitutional convention, which would then prepare "governance documents" for a separate Native Hawaiian entity.
The lower court denied our injunction, so we took it upstairs to the appellate court. We filed an Urgent Motion for Injunction
http://www.judicialwatch.org/press-room/press-releases/judicial-watch-asks-appeals-court-to-halt-race-based-separatist-election-in-hawaii/
with the U.S. Court of Appeals for the Ninth Circuit. We lost again. Undeterred and confident in our legal arguments, the JW team immediately thereafter filed an emergency application
http://www.judicialwatch.org/document-archive/akina-v-hawaii-scotus-emergency-application-151108/
on November 23 to the Honorable Justice Anthony Kennedy, Associate Justice of the United States Supreme Court who oversees the Ninth Circuit. Last Friday, shortly after Judicial Watch replied
http://www.judicialwatch.org/document-archive/akina-v-hawaii-reply-15a551/
to Hawaii's opposition, Justice Kennedy issued an order
http://www.judicialwatch.org/document-archive/akina-v-hawaii-order-15a1551/
temporarily enjoining the election pending review by the entire Supreme Court. That was a sweet victory. But this week, the Supreme Court (voting 5-4) granted our request. The December 2, ruling reads:
"The application for injunction pending appellate review presented to Justice Kennedy and by him referred to the Court is granted. Respondents are enjoined from counting the ballots cast in, and certifying the winners of, the election described in the application, pending final disposition of the appeal by the United States Court of Appeals for the Ninth Circuit. Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application."
Under federal law, the Supreme Court only issues emergency injunctions when the circumstances presented are "critical and exigent" and the legal rights at issue are "indisputably clear." Accordingly, this Supreme Court decision sends a strong message for the lower courts.
The aborted election, which was being conducted by mail-in ballots, was to have ended in November but the voting deadline was recently extended to midnight Monday, December 21. The election was made possible by a grant by the State of Hawaii of $2.6 million in public funds.
The war isn't over, but this is a significant success for the rule of law. Here, it's important to point out that the Obama administration supported the race-based election
http://www.judicialwatch.org/document-archive/dept-of-interior-amicus-hawaii-race-based-election-00322/
in this litigation despite the fact that the State of Hawaii limits eligible voters in the election to those who have at least one drop of Native Hawaiian blood. Go back in history, and you will find that this "one drop of blood" rule is like other laws last seen in the racist Jim Crow era: "It also has an unfortunate resonance in American history. See, e.g., Loving v. Virginia, 388 U.S. 1, 5 n. 4 (1967) (discussing Virginia statute holding that '[e]very person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person')."
Imagine if this "one drop of blood" rule had resulted in a new "tribe" that had as its goal "independence" for Hawaii. The precedent could lead to Muslims asserting sovereignty, Hispanics, Scottish-Americans – you get the picture. This case was not only about the rights of our few clients, it was about the future of our nation.
That we were able to stop this potential calamity for our nation the day after Thanksgiving is providential.
And our legal team requires special recognition, especially as they had to work over Thanksgiving! Robert Popper, director of Judicial Watch's Election Integrity Project, is Judicial Watch's lead attorney
http://www.judicialwatch.org/press-room/press-releases/judicial-watch-asks-appeals-court-to-halt-race-based-separatist-election-in-hawaii/
on the lawsuit and lead counsel for all plaintiffs. Mr. Popper was formerly deputy chief of the Voting Section of the Civil Rights Division of the Justice Department. Michael Lilly of the Honolulu law firm Ning, Lilly & Jones, a former Attorney General for Hawaii, is serving as Judicial Watch's local counsel for the plaintiffs. H. Christopher Coates is also an attorney for the plaintiffs. Coates is an expert voting rights attorney who most recently served as Chief of the Voting Section of the Civil Rights Division of the Justice Department under President Barack Obama. William S. Consovoy and J. Michael Connolly of Consovoy McCarthy Park PLLC just joined as counsel as the litigation went before the Supreme Court.
The fight isn't over, and the litigation will continue in the lower courts. But the corrupted election won't take place any time soon, and I wouldn't bet, based on this week's extraordinary Supreme Court action, that it will ever take place.
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https://www.staradvertiser.com/editorial/delay-of-election-aids-nai-aupuni/
Honolulu Star-Advertiser, December 4, 2015, Letter to editor
Delay of election aids Na'i Aupuni
As someone who has steadfastly opposed the Hawaiian Roll and Na'i Aupuni's attempts to capture the Hawaiian sovereignty movement, I also am completely opposed to the U.S. Supreme Court's block of the vote that Na'i Aupuni has undertaken over the last month ("U.S. high court halts balloting for delegates to Hawaiian body," Star-Advertiser, Dec. 3).
In fact, Justice Anthony Kennedy's stay gave Na'i Aupuni an excuse to extend the voting period an extra 21 days. All kānaka who are working either to restore the lawful kingdom or who are pursuing a clear and authentic self-determination should not want to see the Na'i Aupuni process dragged out and given new life.
Grassroot Institute has done neither the residents of Hawaii nor Hawaiian nationals any favors. But it has reminded us that thousands of our people objected to federal interference during the U.S. Department of Interior hearings last year. We still object.
That the conservative members of the Supreme Court should lecture anyone on race preference is just the latest American absurdity.
Jon Osorio, Noe Goodyear Kā'opua, Andre Perez
Movement for Aloha no ka 'Āina (MANA)
---
** Online comment by Ken Conklin
Osorio, Kaopua-Goodyear and Perez are merely pouting -- venting their jealosy and throwing a tantrum over in the corner, because their viewpoint has NEVER been of any practical usefulness during the 16 years that mainstream conservatives have succeeded in blocking the tribalization effort.
For 13 years the Akaka bill was blocked entirely by the efforts of Republicans in the U.S. Senate, conservatives on the U.S. Commission on Civil Rights, and Hawaii civil rights activists such as Aloha For All and the Grassroot Institute, while the noisy secessionists were merely spitting into the wind.
And for the most recent three years it's been the same story where Osorio, Perez, and their ilk have made lots of noise with no real effect, collecting their government sinecure paychecks at UH, or welfare benefits, while success has been achieved by people spending their own hard-earned money, such as the local Grassroot Institute and national conservatives like Judicial Watch, the U.S. Commission on Civil Rights, Cato Institute, Heritage Foundation, etc.
Osorio et. al. simply don't like it that the only way their goal of stopping tribalization has been achieved is through the success of people of all races, including ethnic Hawaiians, who are proud to be Americans -- we who, unlike Osorio et. al., support the unity of all Hawaii's people under the single sovereignty of the State of Hawaii, and the concept that all people should be treated equally under the law by the government regardless of race.
---------------------
http://america.aljazeera.com/articles/2015/12/5/first-steps-toward-native-hawaiian-sovereignty-get-tripped-up.html
Al Jazeera America, December 5, 2015
First steps toward Native Hawaiian sovereignty get tripped up
Ruling upheld by U.S. Supreme Court puts contentious election on hold as supporters strive for self-government
by Brittany Lyte
KILAUEA, Hawaii -- The results were supposed to be announced on the first day of December.
But the historic first election that could lead to sovereignty for Native Hawaiians didn't even make it to the final day of voting without a legal challenge pulling it to a halt.
No one thought this was going to be easy.
Still stinging from the bitter rout of colonization, Native Hawaiians are the only indigenous people in the United States without their own political structure. The election in November was to be the first step in changing that, with nearly 90,000 Native Hawaiians certified by a state-sanctioned roll commission to vote on delegates for a constitutional convention in early 2016. It would be there, supporters hoped, that the elected delegates would then draft a document to guide the creation of a government by and for Native Hawaiians.
But on Nov. 27, three days before the end of the 30-day vote, U.S. Supreme Court Justice Anthony Kennedy, acting alone, ordered officials not to count ballots, putting all those plans in limbo. His order was in response to an emergency application from two non-Hawaiians, who aren't eligible to participate in the election, and four Hawaiians who argue that race-based voting is discriminatory under the 15th Amendment.
The hold on ballot counting prompted election organizers to extend the voting period for three weeks, through Dec. 21.
"It's a victory for all Hawaiians -- and all Americans -- in its affirmation of racial equality," said Keli'i Akina, the president of public policy think tank Grassroot Institute of Hawaii and one of the plaintiffs challenging the election. "Finally, it is a victory for the aloha spirit, which enables people of all backgrounds to live and work together in harmony."
Kennedy's order later gained majority support from the Supreme Court, continuing the prohibition on counting the ballots until there is a ruling on an appeal of U.S. District Court Judge Michael Seabright's decision in October that allowed the election to proceed. He ruled that the election is private, and private elections are permitted to limit voter eligibility by race.
"This is an election for delegates to a private convention, among a community of indigenous people for purposes of exploring self-determination, that will not -- and cannot -- result in any federal, state or local laws or obligations by itself," he wrote.
The nation-building process is being organized by Na'i Aupuni, a private nonprofit. (In Hawaiian, na'i means "the one who conquered," and aupuni means "created the kingdom.")
Among some voters, there had been a sense of celebration for taking part in what they described as the first genuine Native Hawaiian election. Others boycotted the vote because it was organized with funds from the state of Hawaii and won a degree of federal endorsement when the Department of Interior urged Seabright to rule against any attempts to scuttle it. That the same government that had stolen their lands, outlawed their hula and purged their language from schools now appeared to be in support of a bid for their independence had some Native Hawaiians feeling suspicious.
Mauna Kea Trask, an attorney for Kauai County, said that those trying to thwart the election are letting emotion stall progress.
In Hawaii, indigenous Hawaiians are disproportionately plagued by homelessness, poor high school graduation rates, substance abuse and incarceration. The election, he said, was a timely chance to build a political mechanism to empower the Native Hawaiian people.
"They're afraid to lose what they don't have, and they don't understand that with failure to act, we will lose what we do have," Trask said of election opponents. "We've got a local boy in the White House. The timing will never be better."
Among the 200 Native Hawaiians competing for 40 delegate seats at the constitutional convention are activists, educators, politicians, police officers, fast-food workers and farmers. Half have college degrees. Some have criminal records. Most live in Hawaii, while others represent states such as California, Wisconsin and Florida. One contender resides in Sweden.
Binding them is a shared desire for a seat at the table when big questions about the political future of their people are discussed and maybe even answered.
The candidates' collective campaign rhetoric, however, did little to tackle the art and intricacies of self-governance. The conversation focused instead on two sides of a fiery debate over which pathway to sovereignty Native Hawaiians should seek if they build their own political structure. A century's worth of almost paralyzing anger born of the 1893 overthrow of the Hawaiian kingdom by the U.S. government has yielded little by way of consensus.
"It's like we're having all the wrong conversations about this, and because of that it's creating all these divisions," said Maija Calcagno, a delegate candidate from Vallejo, California.
A federally recognized Native government would allow Hawaiians to become citizens of their own nation while retaining American citizenship. This model became available in September, when the U.S. Department of Interior published a draft administrative rule outlining the process by which a Native Hawaiian nation, once formed, could seek a formal government-to-government relationship with the United States. There are 566 American Indian and Alaska Native tribes with a federally recognized form of self-governance, a special political status that indigenous Hawaiians have never been offered.
Those who decry federal recognition cite a deeply held distrust of the U.S. government that cannot so easily be swapped for an authentic desire to form a political partnership.
"I'm not an American, and I want people in the world to know that," said Dennis "Bumpy" Kanahele, a well-known Hawaiian nationalist who's running for delegacy.
Another, presumably longer, pathway to sovereignty is total independence. The ambitions of those who champion this route have been refueled by a 1993 joint resolution in which Congress formally apologized for the overthrow of the Hawaiian kingdom, acknowledging that it was illegal and expressing a "deep regret to the Native Hawaiian people" as well as a sense of support for reconciliation. It would take an international court order to reinstate the Hawaiian kingdom, dissolve the state of Hawaii and do away with the U.S. government's presence in the Hawaiian Islands.
Critics of total independence argue that loss of American citizenship would be debilitating for Native Hawaiians and note that it's improbable to think that the U.S. government and its robust military, in which many Native Hawaiians serve, could be pushed off Hawaii's eight strategically located islands.
"That's a pie-in-the-sky desire," said Robin Danner, a co-founder of the Council for Native Hawaiian Advancement.
http://www.hawaiiancouncil.org/
"These are not people who want to help Hawaiians build houses. These are people who want to be Malcolm X."
The political ramifications of a Native Hawaiian people so politically divided are not lost on Calcagno.
A federal recognition proponent, she was born into a family that fled Oahu for the U.S. mainland in the 1950s because it was difficult at the time for Native Hawaiian electricians, such as her grandfather, to get hired in the islands. Further in the future, she said, she would like to see the reorganization of a completely independent Hawaiian nation. But Calcagno, a law school student, said that's something for which her people aren't ready yet.
"Where would we be with a totally independent Hawaii right now?" she said. "There are no Hawaiians ready to run a government. If you're so idealistic that you can't accept anything but the most idealistic remedy, than you're pretty much status quo."
Walter Ritte, an independence activist who's also at the forefront of Hawaii's anti-GMO movement, publically scrubbed his name from the delegate candidacy four days before the start of the election, calling it a "disillusioned vision of sovereignty."
Originally he planned to campaign for a delegate seat so he could advocate for total independence. He later decided that the process was being championed by an overwhelming majority of pro-federal-recognition candidates, leaving the total independence camp without a fair chance for an equal voice.
"This process has been and continues to be rigged to fit very specific agendas, and I cannot participate in a process that is not pono" Ritte said, using the Hawaiian word for "righteous." "This is not the kind of thing that we want to build our nation on."
Pua Ishibashi, a delegate candidate from Hawaii Island, lamented that there has been no comprehensive polling of Native Hawaiians, of whom there are an estimated half million, and no credible leadership to move the conversation forward.
The election seemed only to strengthen the glaring fissure dividing Native Hawaiians on the issues of what sovereignty should look like, how it should be achieved and who, if anyone, outside the Native community should have a hand in it.
"I think the biggest issue facing Hawaiians today are ourselves," he said. "We're not unified, we don't have a consensus on anything, and it seems like we don't have a plan. There is no one that the Hawaiian community is looking at that's a leader. And we have no idea what sovereignty tastes like. We never experienced it like our ancestors. I think so much time has passed that maybe that's part of the whole plan -- that we forget."
-----------------------
http://thegardenisland.com/news/opinion/mailbag/letters-for-dec/article_d145ed36-9b15-11e5-bfe5-93c9e40e220b.html
The Garden Island [Kaua'i], December 5, 2015, Letter to editor
Concerns arise about election process
The Na'i Aupuni election process to elect delegates to convene for the purpose of focusing upon the processes and procedures by which the destiny of the kanaka maoli may be impacted raises the following concerns:
1) Why have some of the delegates chosen not to be a part of this endeavor?;
2) Shouldn't the concerns be addressed up front to establish integrity, clarity, transparency, and
accountability?;
3) Why not have proponents and opponents to this election "face-off" in a debate and have that broadcasted on public access community television to the merits and demerits of this proposal may be evaluated before the election process is held?
Shouldn't every effort be made to be pono to dispel any innuendo about the legality of what is going on? Too much is at stake "as is."
Jose Bulatao, Jr.,
Kekaha
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http://www.staradvertiser.com/editorial/nai-aupunis-hawaiian-election-unraveling-at-seam/
Honolulu Star-Advertiser, December 6, 2016 COMMENTARY by regular columnist
Na'i Aupuni's Hawaiian election unraveling at seam
by Richard Borreca
Some major parts of the Na'i Aupuni election designed to set the stage for recognition of a Hawaiian government appear to be seriously unraveling.
Last week, the U.S. Supreme Court blocked the counting of ballots in the election at the request of six Hawaii and mainland residents, claiming the election only for Hawaiians is an illegal race-based election. The lower courts had ruled it was a private, not government, election and was proper. The top court said the entire Ninth Circuit Court should take another look at that.
Meanwhile, other questions are popping up.
First, after starting the election for delegates to a Hawaiian convention, the sponsoring group, Na'i Aupuni, extended the closing date of the election to Dec. 21, because as William Meheula, the group's attorney said, "voters may not have cast their ballots over concerns and questions on the recent U.S. Supreme Court's decision to temporarily stop the vote count."
Changing vote dates and times is almost always a big no-no and fiddling with the date because of speculation that voters need more time is questionable.
Also Na'Aupuni has a somewhat fluid definition of who can vote in the election.
The rules said it was supposed to be an election open to those who registered as Native Hawaiian voters and also "affirm the unrelinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-governance."
But, Na'i Aupuni says on its website that if you disagree with that, it is OK and you can still vote because you can register to vote via the Office of Hawaiian Affairs, "which does not include this declaration."
Interestingly, one of the reasons cited by those suing to stop the election -- according to local attorney Michael Lilly, who is representing the group -- is that the pledge would violate the U.S. Constitution's First Amendment free speech clause.
"If those qualifiers did not exist and the election was open to all citizens regardless of race or point of view, there would have been no constitutional basis to challenge and thus no order stopping the counting of votes," Lilly said in an interview.
Here is another part of the election rules that, while not part of the lawsuit, is just funky, as in smells bad. Na'i Aupuni candidates must report who gives them campaign money, but it only has "to be reported after the election." So much for educating the voters.
The big issue that has the U.S. Supreme Court interested, however, is the whole idea of holding an election that limits voting to those who claim Hawaiian heritage.
Honolulu attorney Robert Thomas writes in his legal blog, Inversecondemnation.com,
that holding an election that is paid for with public money runs into the Supreme Court prohibition from the 2000 Rice v. Cayetano decision.
Thomas says Na'i Aupuni's attempt to move the $2 million in OHA money for the election through a nongovernment group will not work.
"Yes, the money was washed through a nonprofit, set up for the purpose of supporting the argument that this is not a publicly funded election. But come on, the Court would have to be blind to not see the pretense," Thomas writes.
Lawyers love to toy with the "The law is blind" metaphor, but in this case, it might not be blind at all.
-------------------
http://www.guampdn.com/story/news/2015/12/06/guam-plebiscite-case-similar-different-hawaii/76701450/
Pacific Daily News [Guam], December 6, 2015
Guam plebiscite case similar, different from Hawaii
by Jerick Sablan, jpsablan@guampdn.com
A court case in Hawaii related to voting rights and race is similar to a case on Guam, but there are also important differences, an attorney involved with the Guam case said.
The U.S. Supreme Court has halted the counting of ballots from a Hawaii election, which was held to select native Hawaiian delegates to draft a document for self-governance. The court has not issued an opinion on the issue, but halted the vote count pending further review.
Attorney Christian Adams -- one of the attorneys representing Guam resident Arnold Davis, who challenged Guam's pending political status vote, saying it violates his voting rights -- spoke in response to the case in Hawaii.
The Guam vote for decolonization is being challenged in federal court for allegedly discriminating against the island's non-Chamorro voters. The case, filed by Davis, who isn't Chamorro and who was not allowed to register for the election, is scheduled to go to trial next July.
Adams on Tuesday said the Hawaii case and Guam case are similar, but with some differences.
"Guam is in a very different position because Congress has enacted a Bill of Rights in the Organic Act, which doesn't exist in Hawaii. Guam has even less ability to restrict the franchise than does Hawaii," Adams said.
It is very rare for the U.S. Supreme Court to issue an emergency injunction stopping the tabulation of ballots, he said.
"It's always hard to predict the outcome of cases, but the emergency injunction does not bode well for racial exclusion in elections," he said.
On Wednesday, the U.S. Supreme Court granted an injunction in the case. The high court granted an injunction requested by a group of Native Hawaiians and non-Hawaiians challenging the election. They argue Hawaii residents who don't have Native Hawaiian ancestry are being excluded from the vote, in violation of their constitutional rights.
The order blocks the counting of votes until at least the 9th U.S. Circuit Court of Appeals issues its ruling. The group suing to stop the election appealed a district court's ruling allowing voting to proceed.
Wednesday's order formally blocked votes from being counted in what's considered a major step toward self-governance for Native Hawaiians. The delegates, once elected, would prepare a document for self-governance by Native Hawaiians.
Guam plans to hold a political status vote, which would be limited to the island's indigenous Chamorros as defined by Guam law.
The non-binding vote, or plebiscite, would be used to determine whether the island's Chamorros prefer statehood, free association or independence. Guam currently is an unincorporated territory of the United States.
The complaint about the Native Hawaiian vote was filed in Hawaii's federal court this past August, when six Hawaiians sued the state government's leaders, as well as the organizations running the election.
The Hawaii election's voter rolls are restricted to those descended from "the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands." This restriction is similar to that placed on who can enroll in the Guam Decolonization Registry for the pending Guam plebiscite -- "native inhabitants of Guam."
Although local law doesn't explicitly restrict registration based on ethnicity or ancestry, it defines native inhabitants of Guam as anybody who "became U.S. citizens by virtue of the authority and enactment of the 1950 Organic Act of Guam and descendants of those persons."
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http://hpr2.org/post/narrowing-window-another-hawaiian-vote
Hawaii Public Radio, December 8, 2015
A Narrowing Window for Another Hawaiian Vote
By NICK YEE
The deadline for comment on a proposed bridge between Native Hawaiians and the US Government is closing soon.
In the fall the US Department of the Interior proposed establishing a formal government-to-government relationship as part of the reconciliation process. The proposal would give Native Hawaiians a legal framework that would help the native Hawaiian community work with the US government.
The move is separate from the Na'i Aupuni election to choose delegates for a convention to discuss alternatives for Hawaiian self-governance. Last week the US Supreme Court blocked votes from being counted in that process.
Kealii Lopez is the Board president of Imua Hawai'i. She says in order to preserve future options, it's important to approve the DOI's ruling while President Obama is in office.
The deadline for comment on the DOI proposal closes on December 30th and you can find more information or submit testimony at The Department of the Interior website.
https://www.doi.gov/hawaiian/procedures
More information on the Na'i Aupuni election can be found here.
http://www.naiaupuni.org/
------------------------
http://abovethelaw.com/2015/12/aloha-racism-the-supreme-court-stops-the-vote-count-in-a-hawaii-election-that-excludes-white-people-foreigners/
Above the Law, [online blog by "Breaking Media", New York], December 8, 2015
Aloha, Racism! The Supreme Court Stops The Vote Count In A Hawaii Election That Excludes White People & Foreigners
By TAMARA TABO
Righteous-IndignationThe United States Supreme Court recently halted the counting and certification of ballots in a controversial Hawaii election. The case, Akina v. State of Hawaii, shows what serious -- and seriously complex -- race issues look like off the shores of the American mainland.
The state of Hawaii, with support from the U.S. Department of the Interior, has been moving in recent years toward a system of self-governance for Native Hawaiians, possibly resembling that of mainland Native American tribal nations. Recent legislation in Hawaii authorized the creation of a constitutional convention of sorts, a group of elected delegates who would craft a framework for Native self-rule.
Here's the rub: Only those Hawaiian citizens with aboriginal Hawaiian ancestry are permitted to vote in the election. No Native blood, no vote.
The challengers in Akina v. Hawaii contend that the election rules are race-based restrictions that violate their rights under the Voting Rights Act and the Fourteenth and Fifteenth Amendments.
On the other hand, Hawaii insists that the election is a private matter, not a state action. Therefore, constitutional protections don't apply here.
The state's Office of Hawaiian Affairs describes the process:
A consortium of Native Hawaiian leaders with deep roots in the community will facilitate a nation building process to move Hawaiians a step closer to self determination. The leaders have formed Na'i Aupuni, a Native Hawaiian organization, that has signed a grant agreement with the Office of Hawaiian Affairs to facilitate nation building. Under the terms of the agreement, Na'i Aupuni will make its own autonomous decisions while OHA will fund the process. ... In addition, Na'i Aupuni will select an independent monitor to oversee the election and ratification.
The plaintiffs are armed with the U.S. Supreme Court's 2000 decision in Rice v. Cayetano. In Rice, the Court found that Hawaii's use of an ancestry requirement in certain state elections was unconstitutional. In his opinion for the majority, Justice Anthony Kennedy made clear that ancestry was simply acting as a proxy for race.
Rice divided the Court by a 5-4 vote. John Roberts, not yet Chief Justice, argued on behalf of Hawaii governor Ben Cayetano. Don't bet on Roberts's vote to stay on that side if SCOTUS eventually hears Akina on the merits, though.
On November 27, Justice Kennedy, assigned to hear emergency petitions from the Ninth Circuit, temporarily enjoined the vote count at issue in Akina, allowing time for his high-court colleagues to weigh in on the matter. Last week, the Court issued a short order keeping the injunction in place while the Ninth Circuit hears the appeal. Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented from the order.
Trouble In Paradise
Hawaii hula dancer grass skirt HawaiianContemporary Hawaii is ethnically diverse and socially complex. Hawaii is, after all, where young Barack Obama, son of a Caucasian mother from Kansas and a Kenyan father, was raised by his white grandparents, living much of the time with his half-Caucasian American, half-Indonesian half-sister . . . Donald Trump's doubts be damned.
But tensions run high between "Native Hawaiians" -- those with aboriginal ancestry -- and "haoles" -- foreigners, particularly white people from, or with ancestors from, the American mainland.
The Southern Poverty Law Center reports, for example, that a 2008 U.S. Department of Education investigation into harassment alleged by Caucasian Hawaiian schoolchildren and their families revealed "substantial evidence that students experienced racially and sexually derogatory name-calling on a nearly daily basis on school buses, at school bus stops, in school hallways and other areas of the school." "Haole c*nt," "haole whore," and "f*cking haole" were often used in conjunction with admonitions to "go home."
According to the report, the children most likely to be victimized were younger, smaller, light-skinned and blonde. For example, Tina Mohr's blonde-haired twin daughters were reportedly harassed and assaulted repeatedly over several years, suffering injuries ranging from cuts and bruises to a dislocated jaw.
Kill A Haole Day: The Holiday Hallmark Forgot
Perhaps most emblematic of the discriminatory attitudes that whites and non-aboriginal Hawaiians face is "Kill a Haole Day."
According to some local lore, it refers to the final day of each school year, when Native Hawaiian students gang up on their haole classmates. Others say that it targets foreign service members instead of kids. Some folks contend that the tradition is no more than myth.
Whether Kill a Haole Day is a fanciful exaggeration or not, those who deny the more extreme versions of the tradition don't tend to deny that there is persistent and pervasive hostility toward non-natives by segments of the Native Hawaiian community.
Aloha spirit, indeed.
We Don't Call Them The Sandwich Islands Anymore, But Still ...
Of course, Hawaii's history of race-based antagonism isn't all nasty names and beating up blonde girls. Colonialism can be a hell of thing to sweep under the rug.
Hawaii became a U.S. state in 1959, after six decades as a U.S. territory, and a short while as an independent republic. The republic had been formed in the wake of the 1893 U.S.-led overthrow of the Kingdom of Hawaii and its leader Queen Lili'uokalani.
Fill in the gaps with fissured treaties, economic exploitation, and perhaps a smidgen or more of cultural genocide.
In 1993, President Clinton signed the Apology Resolution to Native Hawaiians, but just ask Galileo or Alan Turing how satisfying late-arriving apologies usually are.
Today, activists within the movement for greater Hawaiian self-determination disagree about exactly what the aims are.
Some want Native Hawaiians to be recognized as a state-within-a-state like mainland tribal nations, which would grant them greater self-determination and legal protection, though not complete independence.
Casino gaming, cheap cigarettes, and Sherman Alexie are great and all, but I'm not sure I'd want to cast my lot with the Bureau of Indian Affairs. Many Native Hawaiians agree.
University of Hawaii law professor Williamson Chang argues that Hawaii never properly ceded its national sovereignty to the U.S. in the first place. You can see an interview with Prof. Chang here, where he offers the legal basis. For Chang and others who share this view, there's no reason for an unlawfully occupied sovereign nation of Hawaii to accept tribal status within the United States.
Not every sovereignty advocate even believes the state of Hawaii's argument in Akina that Na'i Apuni is a private matter, not a state action. In fact, if it were private, that could be worrisome for Native Hawaiians participating in the process. What legal recourse would be available if a purely private election process becomes tainted by fraud or corruption?
There are multiple pretenders to the throne of the Hawaiian Kingdom, including some weird ones. Others want a constitutional republic.
Lots of people want reparations.
Just as on the mainland, racial politics in Hawaii come with history. Given enough history, no group comes to the table with entirely clean hands. Even in paradise.
Of course, the righteousness of Hawaiian sovereignty is not what's before the courts in Akina. The question is whether it's legal legerdemain for the state to authorize and fully fund the racially discriminatory Na'i Apuni election, while still insisting that the election is a private matter. If it is, then advocates of self-rule will be forced to find another way.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school's law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.
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http://us3.campaign-archive2.com/?u=f9a371d0547f107d938233d66&id=b7669afe21&e=4a7cf86850
Grassroot Institute of Hawaii, December 9, 2015, news release
Hawaiian Independence Activists Thank Grassroot Institute for Election Lawsuit
Free Hawaii video puts aside political differences in face of larger victory
HONOLULU, HAWAII -- December 9, 2015 -- In a rebuke to those who assume that the Na'i Apuni nation-building effort has the full support of Native Hawaiians, a group of Hawaiian activists is thanking the Grassroot Institute for its role in stopping the election. In a video uploaded to You Tube,
https://youtu.be/XJo9gqUjZvE
'Ehu Kekahu Cardwell of the Koani Foundation urges followers to "mahalo" the Grassroot Institute, putting aside political differences in the face of a more significant victory.
In the video, Cardwell compares the Grassroot Institute to rescuers in heavy seas, pointing out that it is senseless to follow a political litmus test in such circumstances. Keli'i Akina, President of the Grassroot Institute applauded Cardwell's sentiments and thanked all Hawaiians who have been part of the fight against the efforts to create a Hawaiian tribe.
"As the Grassroot Institute's first kanaka maoli executive and president, I have been grateful that the organization has updated and clarified the role it desires to play with respect to native Hawaiian issues," stated Dr. Akina. "Specifically, we absolutely stand with those who oppose US government control over native Hawaiians, whether that be at the federal or state level."
Dr. Akina continued, "The principles on which the Grassroot Institute is founded include a deep respect for civil liberties. Thus whether we agree or not, we defend the right of those who seek to challenge the existing Federal and state governments with a vision of an independent Hawaiian government. This right to challenge or protest and even to seek to 'institute new Government' is guaranteed by the Constitution reflects the very spirit of the Declaration of Independence."
"Though we have won a victory in the courts, the issue is still very much alive. Action from the Department of Interior can still create a tribe despite the work of groups like the Grassroot Institute and our Hawaiian allies. It is our hope that we can all work together for a vision of a great Hawaii for the future of our keiki, and there must be many voices who interact in the creation of this vision."
"We have been proud to stand alongside Free Hawaii, the Koani Foundation and many other kanaka maoli groups, and greatly admire their integrity in embracing a vision which does not divide people on the basis of race or genetics. The aloha spirit is one of inclusiveness and this is the glory and greatness of Hawaii nei. In the words of the motto we have embraced since my partnering with Grassroot, "E Hana Kakou!" - let's work together!" Dr. Akina concluded.
The Free Hawaii video can be viewed at:
https://youtu.be/XJo9gqUjZvE
----------
http://freehawaii.blogspot.com
http://freehawaii.blogspot.com/#sthash.olTCgtba.dpuf
Free Hawaii TV, Wednesday December 9, 2015
"WHY YOU SHOULD MAHALO THE GRASSROOT INSTITUTE"
You're Kidding, Right?
Why Would I Want To Say Mahalo To Them?
Could It Be Because They Did Something You Couldn't?
Watch This To See Why You Couldn't & Why They Now Deserve Everyone's Thanks.
Then Share This Video Today With Your Family & Everyone You Know.
- See more at:
http://freehawaii.blogspot.com/#sthash.olTCgtba.dpuf
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http://www.staradvertiser.com/editorial/mountains-sacredness-seems-a-recent-thing/
Honolulu Star-Advertiser, December 13, 2015, Letter to editor
Na'i Aupuni election paid for by Hawaiians
Keli'i Akina and his Grassroot Institute have opposed justice for Native Hawaiians since before Rice v. Cayetano in 2000.
The Na'i Aupuni election is a political issue relating to the theft of our Hawaiian nation, and not a racial issue.
Akina says that justice will destroy the aloha spirit. Many kanaka maoli, who give us the aloha spirit, endure dismal social conditions -- with a skyrocketing cost of living amid a tsunami of multimillionaires.
The Na'i Aupuni election is not publicly funded. As an Office of Hawaiian Affairs trustee (1984-1996), I negotiated with the Waihee and Cayetano administrations for a percentage of the ceded (seized) land revenues. Consequently, 20 percent earned from seized Hawaiian lands now goes to the Office of Hawaiian Affairs, which funded the Na'i Aupuni election.
Na'i Aupuni is funded by us Hawaiians.
Moanike'ala Akaka
Hilo
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http://www.truth-out.org/news/item/34012-native-americans-warn-native-hawaiians-of-the-dangers-of-federal-recognition
TruthOut, December 13, 2015
Native Americans Warn Native Hawaiians of the Dangers of Federal Recognition
By Imani Altemus-Williams, IC Magazine
In 2001, the late Russell Means of the Oglala Sioux nation visited Hawai'i where he shared his grandfather's words regarding the impact federal recognition has had on indigenous peoples.
"Grandson, all of this land someday will not be yours. That's the reality of federal recognition. Someday, none of this will be yours. Welcome to America."
His prophetic words particularly ring true today.
In the summer of 2014, the U.S. Department of the Interior or DOI held a series of 15 public hearings throughout the Hawaiian islands to discuss the reestablishment of a "formal government-to-government relationship between the United States and the Native Hawaiian community." By and large, the U.S. government is persuading the Kanaka Maoli (Native Hawaiians) to accept a process by which they will be federally recognized as Indigenous Peoples in the U.S.
Throughout the hearings, thousands of Native Hawaiian's lamented the same cry; that they oppose the U.S. government being involved in Native Hawaiian nationhood.
"No, the DOI should not involve itself whatsoever in a reorganization of any sort of Hawaiian people's government", declared Mana Movement organizer 'Ilima Long in her testimony to the DOI.
Each hearing saw a larger crowd than the previous, nearly all-sending a unified message that Hawai'i remains an independent nation under international law and federal recognition would undermine their sovereignty.
"The law of nations tells me that we are the Kanakas, the only people that have a legal right to conduct our affairs. No other entity, whether state or federal government has that authority", explained Isaac Kaiu when addressing the department.
Mothers, fathers, grandparents and grandchildren expressed the pain that their families and ancestors have experienced since the U.S. overthrow of the Hawaiian Kingdom 122 years ago. This moment reignited a collective conversation around nationhood and independence.
"Uncle Joe" Tassil told Intercontinental Cry that the islands would still resemble paradise if Hawaiians were in control.
"If our ancestors made this rock look like paradise for people that wanted to come from all over the planet, why does it look and smell like hell today? Because we are not in charge. Had we been in charge this would still be paradise."
One year after the DOI visit to the islands, roughly 95,000 Native Hawaiians that had allegedly enrolled in the Native Hawaiian Roll Commission received an election notice from Na'i Aupuni, a non-profit corporation run by six individuals. These individuals were selected to serve as directors by the Office of Hawaiian Affairs or OHA; a semi-autonomous department of the state that maintains a controversial reputation in the Hawaiian community. Na'i Aupuni is independent of, but funded by OHA. Its purpose was to facilitate the process for nation re-building by electing 40 delegates to participate in the 'Aha or convention, where they would determine the best approach to self-governance. After a month long election, on Dec 1, 2015, voters were expected to have elected 40 Native Hawaiian delegates who would convene and form a governance document to be ratified by participating Native Hawaiians.
On Nov. 27, 2015 the U.S. Supreme Court Justice Anthony Kennedy blocked the counting of votes after six people challenged the election, including Keli'i Akina, the president of the Grassroots Institute of Hawai'i. The high court approved the injunction that forbids Na'i Aupuni to count the votes until the 9th U.S. Circuit Court of Appeals delivers its ruling. As a result of the temporary halt, Na'i Aupuni has extended its voting deadline to Dec. 21, 2015.
An online poll conducted by the Honolulu Star Advertiser newspaper asked whether the DOI should "keep open the process for federal recognition of Native Hawaiians," 67 percent of participants said "no". Many Hawaiians did not vote in the election because they question the lack of wide community involvement in the process, and believe it to be rigged. Longtime Native Hawaiian activist Walter Ritte has called it "a fake pathway to nationhood and its disillusioned vision of sovereignty".
The Native Hawaiian Roll Commission enrolled 95,000 Indigenous Hawaiian names. However, as noted in a recent Indian Country Today article by Dr. Randall Akee and Dr. Noelani Arista, the certified list contains duplicate names and names of deceased individuals, as well as signatures that were transferred from previous state-controlled lists of Native Hawaiians onto the roll without the consent of those individuals. Only 18 percent of all Native Hawaiians are registered to the Roll Commission. Should federal recognition pass, the remaining 80 percent who have not enrolled will have relinquished, many unknowingly, their rights and the rights of their children and descendants as legally recognized Native Hawaiians. They are exempt from voting, and excluded from receiving monetary benefits and land rights.
There are also members of the community who believe federal recognition is the most viable approach to ensure the health and prosperity of the future generations of indigenous Hawaiians.
When vice-chair of the Native Hawaiian Roll Commission, Na'alehu Anthony addressed the DOI, he explained his motivation in seeking federal recognition.
"I was thinking about this very room about 25 years ago, I was like 12 or 13 years old, packed with Hawaiians, packed, same conversation going on today. My tutu (grandmother), my mom, now me. The reason I'm here today is because I no like just leave this for my son. I like move forward."
If the courts declare to proceed with the Na'i Aupuni process, it could significantly impact the future of Hawai'i. To ensure that history not repeat itself, the Native Hawaiian community and U.S. government must critically examine the vestiges of their past, so they can uncover the pono or righteous pathway towards self-determination.
Overthrow
Many people are unaware of the unique history of the United States' occupation of Hawai'i. Similar to Indigenous Peoples of the continental United States, Native Hawaiians also carry a horrifying past and present. However, what differentiates Hawai'i is that there was a time when many international bodies such as France, Great Britain, Belgium, Austria-Hungary, Japan, Russia, and the United States, among other states, recognized the Hawaiian Kingdom through treaties.
In 1893, an attempted coup d'etat backed by the U.S. marines overthrew the Hawaiian Kingdom government, establishing an illegal and self-ascribed "Republic of Hawaii". Despite mass opposition and local resistance, the islands were seized by the United States five years later for strategic military use during the Spanish-American War. In 1897, 90 percent of Hawaiian nationals during that time signed what became known as the Ku'e Petitions opposing and effectively stopping legal annexation through a treaty between the Kingdom of Hawai'i and the U.S. Even then-President Grover Cleveland called the overthrow a "substantial wrong" and "an act of war" and vowed to restore the Hawaiian Kingdom, but was thwarted by an imperialist U.S. Congress. Hawai'i remained a U.S. "territory" for another 60 years. On Aug. 21, 1959 Hawai'i was pronounced the 50th state of the United States of America.
In 1993, President Bill Clinton issued an apology to the Native Hawaiian people in the form of a joint resolution passed in Congress called the Apology Resolution, and advocated for reconciliation efforts between Native Hawaiians and the U.S. government. He admitted to the fact that Hawaiians did not relinquish their inherent sovereignty or national lands, but stopped shy of admitting guilt in the violation of international law and circumvention of the rights of citizens of another country -- the Hawaiian Kingdom.
"One of the primary principles of reconciliation should be that the terms of reconciliation must be made by those who have been injured, not by the party who facilitated harm", stated 'Ilima Long.
But can there ever be true reconciliation without the full restoration of the Hawaiian Kingdom?
For the last 17 years, Dr. Keanu Sai, a retired Army captain and PhD of Political Science has publicly testified on the unlawful occupation of Hawai'i at international courts across the globe. According to Dr. Sai, there was never a treaty of annexation between Hawai'i and the U.S. If the United States cannot demonstrate proof of an existing treaty, Hawai'i remains a sovereign state.
"Hawai'i's status as an independent state has never been legally extinguished and thus continues to exist, as affirmed in the Permanent Court of Arbitration and many lawyers and scholars of international law", states UCLA President's Postdoctoral Fellow Iokepa Casumbal-Salazar.
Dr. Sai refers to this rule of international law as the "presumption of continuity". After reviewing Dr. Sai's overwhelming evidence, the United Nations General Assembly has also accepted his complaint.
With the understanding that Native Hawaiians and Native Americans endured a vastly different history of U.S. colonization and occupation, Hawai'i's future could look strikingly similar to the life of many Native American tribes today.
The U.S. Federal Register writes its own rendition of U.S. relations with federally recognized tribes.
"The Federal government's relationship with these tribes is guided by a trust responsibility -- a long-standing, paramount commitment to protect their unique rights and ensure their well-being, while respecting their tribal sovereignty."
Shannon Rivers, an Akimel O'otham delegate for the United Nations Permanent Forum on Indigenous Issues explains his version, as he highlights the trials many federally recognized native tribes currently face.
"Some people might argue that under the federal system, this U.S. government system works better for us. But what we've seen over the last several decades is that extreme poverty still exists in many of our communities; alcoholism, drug addiction, violence to our women and children, high levels of imprisonment of our native people. So the question is does this system really work and has it worked? My answer would be no."
There are 566 federally recognized tribes in the United States and more than 200 tribes that are not federally recognized. Countless of these tribes have not escaped dismal treatment by the U.S. government. One-in-four Native Americans and Alaskan Natives live in poverty. Native nations continue to suffer from limited resources, poor education and healthcare, mass incarceration, and violations of their land, cultural and religious rights. One of the most devastating realities for Native Americans is that they suffer some of the highest rates of suicide in the nation. Among Native Americans, forty percent of suicide deaths are between the ages of 15-24.
Corporate Takeover
Is federal recognition enough to prevent multinational corporations from exploiting the land and natural resources of indigenous peoples?
Dine or more commonly known as Navajo nation is the second largest federally recognized tribe in the United States. The tribe has a 42 percent unemployment rate, 86 percent of the nation lack a natural gas service, and close to half of the population over twenty-five live below the federal poverty line. Even the USDA declared a major lack of accessibility to fresh produce and fruit on the 27,000 mile reservation that spans three states; Arizona, New Mexico and Utah.
Among these disheartening statistics, the Dine people have been forcefully relocated off of their traditional homelands for the extraction of coal; revered by the tribe as the liver of Mother Earth. While the Dine nation subsidizes electricity for much of the Southwest, and gains revenue for large energy companies such as Peabody Energy, 38 percent of its people live without running water or electricity. Along with coal mining, the tribe also withstood the excavation of uranium. The removal of coal and uranium has depleted the Dine aquifer, as well as created radioactive waste that has had adverse health effects on the people and their livestock.
Corporate robbery of indigenous resources in exchange for poisoned water, lands and communities is not an issue exclusive to federally recognized tribes. The same story currently exists in Hawai'i.
The corporate profiteering on the Dine reservation is reminiscent of Hawai'i's ongoing battle with large biotech chemical corporations who are treating the world's most isolated island chain as a guinea pig for biotech chemical engineering. Like the Dine experienced with resource mining, Native Hawaiians are facing the negative impact biotech chemical testing is having on the people and biodiversity of their land. Most Native Hawaiians on both sides of the Na'i Aupuni debate are against the heavy presence of biotech companies on the islands, and support an organic local food system instead. But despite the Dine nation being federally recognized, they remain unable to evict the energy companies from their lands.
Rivers understands how the struggles of federally recognized communities and the indigenous people of Hawai'i overlap.
"If you look collectively across indigenous nations the loss of land, the loss of resources are major factors of colonization and forced assimilation into a society that we did not understand. It was based on capitalist and colonial systems."
The prolonged legacy of these systems has undermined indigenous ways of life and sovereignty. Across borders, federally recognized or not, capitalism and racism continues to erode indigenous survival. One colonial system that has proven effective in disarming indigenous peoples is the U.S. food scheme. Both Native Hawaiians and the Tohono O'odham nation rely on the U.S. government for their sustenance.
US Food Dependency
Hawai'i imports approximately 92 percent of its food. In the event of a natural disaster, the state could only support its residents for a little over a week. Despite an abundance of prime agricultural land, Hawai'i has become almost exclusively reliant on the United States for its food.
The Tohono O'odham are a federally recognized tribe in the Sonoran desert, with territories crossing two colonial countries, the U.S. and Mexico. Like Hawai'i, this once self-sufficient nation is now almost entirely food dependent upon the United States. For centuries, the Tohono O'odham people traditionally cultivated a myriad of nutritious indigenous foods, such as tepary beans, mesquite seed pods, acorns and cholla buds on their own land. As a result of colonization by the Spanish and European, the Tohono O'odham have been stripped of the indigenous agricultural knowledge necessary to farm and harvest in the desert. Instead, the tribe was coerced into adopting a western colonial diet, which has had a devastating impact on the health of the community. Nearly half of Tohono O'odham adults live with type 2 diabetes -- dismally close to the rate of Pacific Islanders affected by the disease.
Ironically, native foods of both cultures can prevent and reduce diabetes. A growing number of indigenous people in Hawai'i and the Tohono O'odham nation are beginning to restore the health of their people through adopting the indigenous diets of their ancestors. They are regaining the traditional skills and knowledge necessary to once again be self-sustaining.
But still, federal recognition has not protected the Tohono O'odham nation from relying upon the United States government for most of their food.
"How do you decolonize a people who are so reliant on these colonial systems? Who were once rich in resources, in culture and traditions, in ceremonies, who are now struggling just to simply survive? The colonial dependency is heavy. These are systems that have put us in a place where many places in the United States have become wards of the government," states Rivers.
Desecration of Sacred Sites
As Hawaiians regularly defend their sacred sites from the U.S. military and other foreign bodies, many wonder if federal recognition helps protect Native peoples cherished lands.
Native Hawaiians have been in a battle to protect the Big Island mountain known as Mauna Kea, from the construction of the Thirty Meter Telescope or TMT. Considered sacred to many Kanaka Maoli, the mountain is viewed as already overdeveloped with 13 giant telescopes. Several state legislative audits and the TMT environmental impact statement have found "the past actions on Maunakea have resulted in substantial, significant, and adverse impacts" to the mountain's cultural, biological, and geological resources. This telescope would violate both cultural and environmental laws, and could pollute the island of Hawai'i's main freshwater aquifer. On Dec. 2, 2015, a Hawai'i Supreme Court rule invalidated the construction permit. The permit was revoked because the state Board of Land and Natural Resources issued it prior to holding a contested case hearing that included opponents of the project. The case will be sent back to the board for a new hearing. For the project to proceed, the board will have to approve another permit.
Many other federally recognized tribes are also familiar with the ongoing desecration of their sacred lands. The San Carlos Apache tribe is fighting to protect the sacred site known as Oak Flat, where they hold religious and coming-of-age ceremonies.
"When we look at the federal model, it is a model that is based on divide and conquer", explains Rivers.
"We grew up in a system that was based on clans, elder knowledge, on belief systems that cultivated millennia. When the federal system and military come in, they say you can't pray this way or you can't dance that way. Why? Because they need those resources."
Oak Flat lies above one of the largest copper deposits in the world. The San Carlos Apache are facing a land exchange of areas of the Oak Flat to Resolution Copper, a giant international copper mining company. Not only would this copper mine be a violation of their land and religious rights, it could also contaminate the reservation's aquifer. Parts of environmental laws, such as the Clean Water Act, frequently exempt the mining industry from adhering to their court rulings.
For the last 158 years, longer than the overthrow of the Hawaiian Kingdom, the Lakota Sioux nation has been in an ongoing struggle with the United States government to protect the continent's oldest set of mountains, the sacred Black Hills. In response to these treaty violations, Lakota Sioux activists referred to as the Lakota Freedom Delegation have been organizing since the 1970's to form the Republic of Lakotah, a nation fully independent from the United States. They made their official proposal for independence in 2007 and have met with the Bolivian, Venezuelan, Chilean and South African embassies in their pursuit of recognition to form their independent nation. The Republic of Lakotah has drawn a "declaration of continuing independence", and like some Native Hawaiians, are also using constitutional and international law to reassert their sovereignty.
After more than a century of federal recognition, the Lakota Freedom Delegation believes that the only way to fully restore the health, language, culture and livelihood of their people is to become fully independent of the United States.
Some Hawaiians fear that by accepting a path to federal recognition, they would grant the U.S. government greater power to re-define who is legally considered Native Hawaiian, thereby delimiting the number of those with a legal voice and able to register dissent.
Although not an indigenous Hawaiian concept, the blood quantum doctrine was introduced to the islands several decades following the overthrow. In the 1921 Hawaiian Homes Commission Act, the U.S. Congress allocated about 200,000 acres of land to eligible Native Hawaiians for residential and agricultural purposes. In order to qualify, one needs to be at least fifty-percent Native Hawaiian.
Most Native American tribes require a certain percentage of blood for enrollment, which is limited to one tribe. In the 1700's, European Americans enacted the Blood Quantum Law to classify who would legally be considered Native American. Most tribes did not adhere to Blood Quantum Law until the government administered the Indian Reorganization Act in 1934.
"This concept of blood quantum, that's a western way of determining Indian blood," says Dakota and Ho-Chunk community worker George Funmaker. He continues to explain the alarming truth of blood quantum law for Indigenous Peoples.
"My sons, if they don't marry one of their tribes my grandchildren won't be considered Native legally. If we consider going by blood quantum and federal recognition, there will be no more Natives on paper. It's statistical genocide. It's a way of wiping us out."
These indicators clearly demonstrate that this system has not worked for native peoples. With the understanding that we are living in a different era, it is still important to recognize that Hawai'i was thriving before the overthrow of the Hawaiian Kingdom.
"We have to get beyond this concept of federally recognized tribes. Do we want a foreign settler-society government telling us how to manage or maintain our own legal and traditional structures? Or should we go back to the system that was created by our people and our ancestors, that tell us that we can do better?" declares Rivers.
Special thanks to Jeff Corntassel and Iokepa Casumbal-Salazar for their invaluable contributions to this article.
IMANI ALTEMUS-WILLIAMS
Imani Altemus-Williams is a recent graduate of the New School. She has been active in Occupy Wall Street and works with undocumented and indigenous activism, anti-mass-incarceration organizing and popular radical education projects in New York City.
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http://www.staradvertiser.com/editorial/participate-today-to-shape-future-of-sovereignty/
Honolulu Star-Advertiser, December 14, 2015, EDITORIAL
Participate today to shape future of sovereignty
Distinctly separate yet umbilically linked, two current efforts toward Native Hawaiian self-determination are at critical junctures. How proponents -- or opponents -- of each fare will set the future path for Hawaii's indigenous people, as well as the entire state of Hawaii. Pivotal events hinge on engagement today.
The two issues: Na'i Aupuni's election of delegates to a Native Hawaiian constitutional convention, the aha; and the rule-making process for a nation-to-nation relationship between the U.S. Department of the Interior and a future Native Hawaiian government.
The aha has captured much of the recent attention, thanks to a lawsuit by the Grassroot Institute of Hawaii to stop it; the suit has seen success so far.
The case has caught the eye of the U.S. Supreme Court, which has ordered a halt in certifying the aha delegate voting results until Grassroot's suit is adjudicated in the U.S. 9th Circuit Court of Appeals. The key issue: Whether the aha delegate election, because it is funded by a grant from the state Office of Hawaiian Affairs to the nonprofit Na'i Aupuni, is a race-based vote improperly funded by state money.
The election of delegates for the aha represents the best opportunity yet to gather a wide diversity of Native Hawaiians' perspectives, and to merge those views via consensus, into a self-governing body.
The aha, targeted for spring 2016, is likely to be raucous, but the beauty of it lies in the process itself: Native Hawaiians coming together to hash out, or at least agree to disagree, on a way forward.
But the Supreme Court's stay on delegate certification, pending the appellate court's ruling, throws the process into unwelcome limbo. Further, Na'i Aupuni itself caused harm to the aha's integrity when it unilaterally extended the deadline to vote for delegates past the Nov. 30 deadline, until Dec. 21.
Disturbingly, any change to the ground rules of any legitimate election only undermines credibility and raises suspicions. This was no exception, fueling skepticism among many Native Hawaiians that Na'i Aupuni, far from the neutral entity it claims to be, favors the nation-to-nation model proffered by the federal government.
Compared with the drama around Na'i Aupuni and the aha, the federal rule-making process toward a nation-to-nation relationship has gotten little attention -- unfortunate, given the momentous door it would open for Native Hawaiians' self-determination. Bundled in this process are long- sought goals of the erstwhile "Akaka Bill" -- generally speaking, official recognition of a special political and trust relationship between the U.S. government and Native Hawaiians, if they can form a unified government.
The federal government's proposed rules resulted from more than 5,000 comments received in 2014, when the Department of the Interior held a series of contentious hearings in Hawaii.
It's important to remember that those hearings and today's proposed rules advance milestones such as the 1993 Apology Resolution, in which the U.S. apologized to Native Hawaiians for its role in the overthrow, and committed the federal government to a process of reconciliation. And in 2000, the Interior and Justice departments recommended the fostering of Native Hawaiian self-determination under federal law.
"Such self-government," says the Interior Department, "provides many native populations enhanced economic development and greater ability to preserve their distinctive cultures and traditions."
That pathway is not a done deal, however. The proposed rules require feedback, and need support, through a public comment period that ends Dec. 30 (see www.doi.gov/ohr or imuahawaii.org).
Yes, the aha remains in limbo. But the public has a rare opportunity this month to weigh in on behalf of Hawaii's indigenous people and culture, in the interest of perpetuation. Let that voice be heard.
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** Ken Conklin's online comment:
Here is a shortened list of the 19 sections in my 134 page testimony. The entire testimony, including a table of contents with page numbers where each section begins, is on the Department of Interior regulations webpage at
http://tinyurl.com/jc6xtnc
1. Aloha from Ken Conklin, civil rights activist supporting unity and equality
2. Why quorum in NPRM for credible participation in election and ratification is too low
3. Don't abandon question 8 from ANPRM "What should constitute adequate evidence or verification that a person has a significant cultural, social, or civic connection to the Native Hawaiian community?"
4. A unique rule for recognizing a Hawaiian tribe should acknowledge the uniquely high percentage of Native Hawaiians as 22% of the total population of Hawaii, making it uniquely traumatic to partition the State along racial lines. Therefore, a unique Hawaiian rule should require a vote by all Hawaii's people to approve federal recognition.
5. Promises or predictions made in the NPRM that the rights of people will be protected cannot be delivered. Whatever requirements the DOI imposes upon a tribe's initial governing document in order to grant recognition can later be changed by the tribe unilaterally -- according to a Final Rule in Federal Register October 19. Any tribe can amend its governing document without DOI approval.
Because of #5: 6. There is no protection for special rights of HHCA-eligible native Hawaiians (50% blood quantum); 7. Hawaiian tribe can ignore DOI prohibition on gambling casinos in Hawaii or mainland; 8. Hawaiian tribe cannot be prohibited from participating automatically in all the benefit programs intended for the mainland tribes; 9. Hawaiian tribe would threaten sovereign immunity of federal and State lands, and also threaten private land titles, due to Indian Non-Intercourse Act; 10. Hawaiian tribe has jurisdiction over citizens with no native blood, and also over ethnic Hawaiians who choose not to join the tribe -- Indian Child Welfare Act; Violence Against Women Act.
11. Remove the terms "reestablishing a government-to-government relationship with the Native Hawaiian community" or "reorganizing a Native Hawaiian government" because there was never a Native Hawaiian government. All governments of a unified Hawaii had massive Caucasian participation in executive, legislative, and judicial branches.
12. The "special political and trust relationship" that Congress has allegedly established with Native Hawaiians does not exist -- asserting it has been a political football punted between Republicans and Democrats.
13. Authoritative sources since 2001 warn that creating a race-based government for ethnic Hawaiians would be both unconstitutional and bad public policy: U.S. House Judiciary subcommittee on the Constitution; U.S. Commission on Civil Rights; and others.
14. Authoritative sources confirm the Hawaiian revolution of 1893 was legitimate and the U.S. owes nothing to ethnic Hawaiians beyond what is owed to all the citizens of the United States: 808-page report of the U.S. Senate Committee on Foreign Affairs (1894); Native Hawaiians Study Commission report (jointly authorized by Senate and House, 1983); more
15. Evidence that "Native Hawaiians" and also the general citizenry of Hawaii do not want federal recognition of a Hawaiian tribe. Zogby survey; two Grassroot Institute surveys; newspaper and OHA scientific surveys show ethnic Hawaiians and the general population place "nationbuilding" at bottom of priorities; more.
16. People of all races jointly own Hawaii as full partners. President Obama himself opposes tribalism and erecting walls between natives and immigrants. History of Black civil rights movement is instructive -- Martin Luther King's model of full integration won the hearts and minds of African Americans and of all Americans, defeating the racial separatism of the "Nation of Islam."
17. Administrative rule-making should not be used to enact legislation explicitly rejected by Congress during 13 years when megabucks were spent pushing it. The executive branch can only implement laws Congress passed, not create laws Congress rejected. Two federal courts have now overruled Obama's rule-making that tried to enact immigration laws rejected by Congress.
18. Federal recognition for a Hawaiian tribe would herd into demographic and geographic racial ghettos people and lands that have long been fully assimilated, widely scattered, and governed by a multiracial society. Map shows public lands likely to be demanded by a Hawaiian tribe; Census 2010 table shows number of Native Hawaiians in every state; Census 2010 table showing number of Native Hawaiians in every census tract in Hawaii.
19. Six cartoons by Daryl Cagle illustrating the social divisiveness of racial entitlement programs, as seen in Midweek newspaper, Honolulu, probably late 1990s to mid 2000s.
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http://www.civilbeat.com/2015/12/supreme-court-rulings-leave-hawaiian-concerns-in-limbo/
Honolulu Civil Beat, December 14, 2015, EDITORIAL
Supreme Court Rulings Leave Hawaiian Concerns In Limbo
Resolutions of the Nai Aupuni elections and Thirty Meter Telescope cases are far from over, but key Native Hawaiian concerns seem unlikely to prevail in either matter.
Dec. 2 was something of a mixed bag for Native Hawaiians, whose interests were simultaneously addressed that day by the supreme courts of both the United States and the State of Hawaii. But that's hardly new. For Native Hawaiians, it always seems to be a mixed bag.
The U.S. Supreme Court temporarily blocked the election of delegates for a convention that would focus on Native Hawaiian governance, until the 9th U.S. Circuit Court of Appeals rules on a challenge to the constitutionality of that election. The injunction cast doubt on the ultimate viability of that election, should the matter eventually be heard by the high court. By his earlier stay in the case, Justice Anthony Kennedy signaled that he feels a challenge to the election could win on appeal.
Back in Honolulu, Hawaii Supreme Court justices ruled the same day that state officials violated due process when they granted a construction permit for the Thirty Meter Telescope project. To move forward on that project, which is loudly opposed by a significant portion of the Native Hawaiian community, justices said TMT leaders will have to seek re-approval for the permit, a process that could take a year, maybe longer.
It wouldn't be accurate to call the net effect of the two cases positive or negative for Native Hawaiians; as with any other ethnic or racial group, its members' opinions are diverse and defy easy generalization.
But we can draw one conclusion from this day of decisions: The struggle will continue to be difficult, contentious and unpredictable to ensure that Native Hawaiian concerns carry any weight in our policy decisions and that Native Hawaiians have some measure of self determination in matters critical to their community.
The U.S. Supreme Court injunction provides a vivid illustration. Despite generations of efforts to restore some form of Native Hawaiian governance, despite a formal federal apology more than 20 years ago for the illegal, U.S.-backed overthrow of the Hawaiian government and despite a carefully constructed process this year to elect delegates for a governance convention, the cause of self determination is likely to land back at square one when this case reaches its conclusion.
This is not to say that Native Hawaiians are unified behind the Nai Aupuni elections, which continue through Dec. 21. To the contrary: Criticisms of the process had deeply divided the community, with some longstanding leaders condemning it and others calling it a once-in-a-lifetime opportunity.
Civil Beat argued that the best place to continue that conversation and to engage in other critical dialogues would be the very governance conference for which delegates were being elected. Where else might Native Hawaiian concerns be more appropriately addressed by those who ought to be responsible for them?
But that prospect seems increasingly unlikely. Justice Kennedy's initial stay on the Nai Aupuni elections indicated he felt the plaintiffs in the case -- the Grassroot Institute and its legal allies -- met a test essential to granting of the stay: A likelihood of success on appeal with a case that alleges the Nai Aupuni process violates the 15th Amendment of the U.S. Constitution.
Regardless of how one feels about the Nai Aupuni elections or construction of the TMT, it appears unlikely that Native Hawaiian governance or arguments over Mauna Kea will be ideas that prevail, when all is said and done.
Even if Nai Aupuni prevails in the 9th Circuit, that decision certainly would be appealed to the high court. If the case were accepted, some court observers say that chances of Nai Aupuni prevailing appear slim, given the court's current makeup and justices' likely positions.
The state Supreme Court decision, conversely, might be seen as a win for Native Hawaiians -- at least for those who continue to be opposed to what they see as desecration of a sacred Hawaiian place.
But as Civil Beat columnist Ian Lind rightly pointed out this week, the ruling had nothing to do with the idea of whether the mega-telescope ought to be built atop Mauna Kea. The justices offered no opinion on that topic, ruling only that granting a conditional permit for construction before holding a contested case hearing on the permit violated due process.
TMT leaders are likely, at this point, to pursue the permit again, and there is little reason to believe they won't ultimately prevail. Only last month, they were preparing to send construction crews back to Mauna Kea, with the full support of state authorities.
But a TMT-produced poll rolled out just before the announcement that construction would resume, though, showed nearly half of Native Hawaiian respondents still oppose the project, despite survey wording seemingly designed to lead respondents toward a supportive position. Indeed, a bare majority of Native Hawaiians were supportive, along with strong majorities of Caucasians, Filipinos and Japanese.
Whether one believes construction should go forward or not, it's probably accurate to say that those Hawaii residents who feel most strongly about it are Native Hawaiian opponents. Gov. David Ige has addressed many of their concerns, but that doesn't appear to have significantly changed the hearts or minds of the opponents.
Whether a new permitting process that legitimately takes their concerns into account will do so is anyone's guess; but as with the Nai Aupuni case, it's difficult to envision those concerns carrying the day.
So, regardless of how one feels about the Nai Aupuni elections or construction of the TMT, when all is said and done it appears unlikely that Native Hawaiian governance or Native Hawaiian arguments over what they might describe as the cultural and spiritual desecration of Mauna Kea will be ideas that prevail.
Some 122 years ago, the United States played a critical role in the overthrow of the Hawaiian government, and took over these islands in dubious processes that are rightfully questioned to this day. Native Hawaiian struggles to acquire more substantial control over the community's affairs and to see that community's cultural concerns honored aren't over. For Native Hawaiians, there may be no acceptable end in sight, nor any resolution that brings peace to a community that has experienced generation after generation of disappointment, broken promises and dashed hopes.
As Native Hawaiians look for a way forward on both of these matters, we hope 2016 will bring a greater sense of community unity and, no matter the course of action, meaningful results that deliver an equal sense of satisfaction.
The Civil Beat Editorial Board
The members of Civil Beat's editorial board are Pierre Omidyar, Patti Epler, Bob Ortega, Richard Wiens, Chloe Fox and Todd Simmons. Opinions expressed by the editorial board reflect the group's consensus view. Contact Opinion Editor Todd Simmons at todd@civilbeat.com or 808-377-0247.
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http://www.staradvertiser.com/breaking-news/nai-aupuni-cancels-native-hawaiian-election/
Honolulu Star-Advertiser, December 15, 2015, Breaking News at 10:08 AM HST
Na'i Aupuni cancels Native Hawaiian election
By Timothy Hurley
Facing a potential court battle that could go on for years, Na'i Aupuni announced this morning that it will cancel the Native Hawaiian election and proceed to a four-week convention in February.
All 196 Hawaiians who ran as candidates will be offered seats as delegates to the convention, or 'aha, said Na'i Aupuni President Kuhio Asam.
"Our goal has always been to create a path so that Hawaiians can gather and have a serious and much-needed discussion about self-governance," Asam said at a downtown Honolulu press conference this morning.
"We anticipated that the path would have twists and turns and some significant obstacles, but we are committed to proceeding to the 'aha where this long-overdue conversation can take place," he said.
He said the board of the nonprofit Na'i Aupuni -- considering the delay it faces from a lawsuit that accused the election of being race-based -- decided that the most effective route going forward would be to offer to convene all of the remaining delegate candidates and allow to organize and achieve Hawaiian self-governance.
The U.S. Supreme Court on Dec. 2 granted an injunction blocking the Na'i Aupuni Hawaiian self-governance election while the 9th U.S. Circuit Court of Appeals considers the lawsuit challenging it.
"Clearly our lawsuit (Akina v. State of Hawaii) has brought an end to a discriminatory election," Keli'i Akina, president/CEO of Grassroot Institute of Hawaii, said in a statement. "Now, in a desperate move to bypass their failed election and ignore their voter base, Na'i Aupuni is undercutting its own efforts to even look like a democratic process."
Akina said changing the rules multiple times erodes the credibility of Na'i Aupuni.
"Our legal team is carefully reviewing all options and remains committed to preserving the Aloha Spirit," he said.
Asam said Election-America, the contractor hired to run the election, has been told to stop taking ballots, to seal any ballots already received and to prevent anyone from counting the votes.
Na'i Aupuni attorney William Meheula said the ballots will never be counted, thus making the litigation brought by Grassroot Institute of Hawaii moot. He said the group will take steps to dismiss the lawsuit.
In addition, Asam said, Mediation Center of the Pacific has been hired to serve as facilitators to lead the initial "instruction week" and assist with organizing the delegates, who were informed of the group's move this morning.
The confirmation deadline to participate in the convention is Dec. 22. An email will request that the candidates confirm whether they intend to accept the terms and attend the 'aha in Kailua during the the month of February.
Asam said delegates will receive information during the first week regarding constitution building, federal Indian law, international law regarding de-occupation, decolonization, the rights of indigenous people, U.S. Constitution issues that relate to Native Hawaiian self-governance, the ceded lands claim, background on Hawaiian Home Lands, kingdom law and constitutions drafted by sovereignty groups.
---------------------
http://www.naiaupuni.org/docs/NewsRelease-NaiAupuniTerminatesElectionProcess-121515.pdf
Na'i Aupuni, December 15, 2015, News release
NA'I AUPUNI TERMINATES ELECTION PROCESS
'Aha Will Go Forward
All Registered Candidates Will Be Offered Seat As Delegates
HONOLULU -- Na'i Aupuni announced today that it has terminated the Native Hawaiian election process but will go forward with a four-week-long 'Aha in February. All 196 Hawaiians who ran as candidates will be offered a seat as a delegate to the 'Aha to learn about, discuss and hopefully reach a consensus on a process to achieve self-governance.
Na'i Aupuni President Kuhio Asam said Na'i Aupuni's goal has always been to create a path so Native Hawaiians can have a formal, long-overdue discussion on self-determination.
"Our goal has always been to create a path so that Hawaiians can gather and have a serious and much-needed discussion about self-governance," Asam said. "We anticipated that the path would have twists and turns and even some significant obstacles, but we are committed to getting to the 'Aha where this long-overdue discussion can take place."
He said due to the delays caused by the ongoing litigation -- that could continue for years -- it was decided that the most effective route at this point would be to offer to convene all of the remaining delegate candidates and allow them to an opportunity to organize Hawaiians and achieve self-governance.
Na'i Aupuni said Election-America has been informed to stop the receipt of ballots, to seal ballots that have already been received, and to prevent anyone from counting the votes.
Na'i Aupuni attorney William Meheula said consistent with offering to seat all candidates,
Na'i Aupuni has decided that the election votes will never be counted. "Thus, the Akina litigation, which seeks to stop the counting of the votes, is moot, and Na'i Aupuni will take steps to dismiss the lawsuit," he said. "To be clear, Na'i Aupuni does not know and will never learn the election results."
Asam said Na'i Aupuni will manage the process of the 'Aha but not the substance of the discussions. "We have retained Peter Adler and Linda Colburn of The Mediation Center of the Pacific to serve as facilitators to lead the instruction week and to thereafter assist in organizing the delegates," he said. "They will contact the candidates who decide to participate in the 'Aha."
The confirmation deadline to participate in the 'Aha is Dec. 22, 2015. An email will request that the candidates confirm whether they intend to accept the terms and attend the 'Aha that runs the month of February 2016 and will be held at a meeting facility in Kailua, Oahu. On
Dec. 23, 2015, Na'i Aupuni will post the list of delegates on its website.
Asam said a key component of the 'Aha is the education and information the delegates will receive during the first week regarding constitution building, federal Indian law, international law regarding de-occupation, decolonization, the rights of indigenous people, U.S. Constitution issues that relate to Native Hawaiian self-governance, the ceded lands claim, background on Hawaiian Home Lands, Kingdom Law and constitutions drafted by sovereignty groups.
About Na'i Aupuni
Na'i Aupuni is an independent organization made up of a volunteer board of directors from the Hawaiian community. It exists solely to help establish a path to an 'Aha, or constitutional convention, where Hawaiians can discuss and explore various options of self-determination. Na'i Aupuni was formed in December 2014 and is separate and independent from the Office of Hawaiian Affairs and the State of Hawaii. For further information about Na'i Aupuni and a list of the 196 candidates who will be seated as delegates can be found at
http://www.naiaupuni.org/.
----------------------
http://www.hawaiifreepress.com/Portals/0/Article%20Attachments/Nai%20Aupuni%20Bribe%20Candidates%20Letter%2012-15-15.pdf
Hawaii Free Press, December 15, publishes email sent by Na'i Aupuni to the 196 candidates, explaining financial details of airfare, hotel, meals.
Dear Candidates,
Given that the counting of the votes may be delayed for up to a few years, Na'i Aupuni has decided to terminate the election as of today and to offer all 201 candidates the opportunity to serve as 'Aha delegates from February 1 to 26, 2016 at a meeting facility in Kailua, Oahu.
One of the main reasons behind this decision to seat all candidates is that you represent a broad-based spectrum of the Native Hawaiian community and thus Na'i Aupuni wants to offer you this rare opportunity to organize Native Hawaiians and to propose a path to self-governance.
A Q&A that addresses many issues concerning this change of events can be found on the Na'i Aupuni website, naiaupuni.org.
In addition, the terms that Na'i Aupuni has authorized the Akamai Foundation to offer to the candidates is set forth below. Because the number of delegates has increased from 40 to up to 201, Na'i Aupuni has reduced the length of the 'Aha to 20 days and Na'i Aupuni can only offer 20 days of per diem of $50 per day for Oahu candidates, $200 per day for Neighbor Island candidates and $250 per day for outside of Hawaii candidates. Na'i Aupuni will also provide breakfast and lunch for each delegate on the 20 convention days. Na'i Aupuni cannot offer any other financial assistance such as transportation, lodging, etc.
If you wish to serve as a delegate at the 'Aha and agree to the terms set forth in this email, please respond to this email and indicate below that you "commit to attend this 'Aha and agree to these terms" and provide the requested information by December 22, 2015, 11:59pm (Hawaii time). If you do not so respond to this email by then, Na'i Aupuni will assume that you will not be attending the 'Aha.
If you have any questions concerning these terms, please contact Louis Perez at
l.perez@akamaifoundation.org
Mahalo nui for supporting the Na'i Aupuni process and we encourage you to support the upcoming 'Aha!
----------------------
http://us3.campaign-archive1.com/?u=f9a371d0547f107d938233d66&id=8b55b8a8d0&e=4a7cf86850
Grassroot Institute of Hawaii, December 15, 2015 News Release
Cancellation of Nai Apuni Election a Victory for the Constitution
Grassroot Institute says Nai Aupuni is undercutting its own efforts to even look like a democratic process.
HONOLULU, HAWAII -- December 15, 2015 -- In a surprising contradiction to their claim of confidence in the legality of their election process, the state and Nai Apuni have announced the termination of the election process for delegates to a Native Hawaiian Constitutional Convention. After suffering a defeat in the nation's highest court, the state has instead decided to change its published and widely-advertised plans, bypassing the election that had drawn criticism from Native Hawaiians and others in order to proceed with a convention composed of unelected delegates.
"Clearly our lawsuit (Akina v. State of Hawaii) has brought an end to a discriminatory election," stated Keli'i Akina, Ph.D., President of the Grassroot Institute and one of the plaintiffs in the case. "Now, in a desperate move to bypass their election, Nai Aupuni is undercutting its own efforts to even look like a democratic process."
One of the Plaintiffs' attorneys, former Hawaii Attorney General Michael A. Lilly, said, "Everything about the unconstitutional race-based Nai Aupuni election has been a complete waste. The State spent $4M creating a native Hawaiian Roll which will never be used. Then the state wasted an additional $2.5M on the election that will never happen. The US Supreme Court saw through this unconstitutional process when it stopped Nai Aupuni from counting the ballots. There has been no oversight of the process to ensure its fairness and credibility. The Campaign Spending Commission has no jurisdiction to ensure the election was fair and free of fraud. And now after wasting $6.5M of taxpayer funds they decide to use delegates that no one elected to hold their Aha. Who anointed them? This entire process lacks accountability and credibility."
Dr. Akina continued: "Changing their own rules multiple times further erodes the credibility Nai Aupuni has with the Hawaiian people, who have been clear in their opposition to the state's nation-building process. Like thousands of other Native Hawaiians, I am appalled at the millions of dollars that have been wasted on this divisive and illegal effort--funds that would have been better spent in meeting the real needs of Hawaiians, like housing, education, jobs, and health care."
"Our legal team is carefully reviewing all options and remains committed to fighting for the preservation of the Aloha Spirit," Dr. Akina concluded.
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http://www.civilbeat.com/2015/12/nai-aupuni-election-terminated-but-all-candidates-are-invited-to-aha/
Honolulu Civil Beat, December 15, 2015
Nai Aupuni Election Halted, But All Candidates Invited to Aha
UPDATE: The group behind the election says a Supreme Court injunction has no bearing on plans to hold a Native Hawaii governance convention.
By Todd Simmons, Opinion Editor for Civil Beat
In a move designed to circumvent a pending federal court challenge to elections for a Native Hawaiian governance convention, leaders of the group organizing the vote announced Tuesday morning that the election has been terminated, but all 196 delegate candidates have been invited to be seated for the convention.
Board members and legal counsel for Nai Aupuni, the non-profit group formed to create an election process and plans for the convention or aha, said candidates were notified Tuesday morning and have until Dec. 22 to confirm whether they'll take part.
The four-week aha will begin in February and will be held in Kailua with assistance from facilitators from the Mediation Center of the Pacific. The key differences between the aha as originally planned and what will go forward now is that nearly five times the number of delegates are now invited to take part, and the aha is scheduled to last four weeks rather than eight.
"Hawaiians have an inherent right to self determination," declared Nai Aupuni President Kuhio Asam in making the announcement, which was kept a tightly held secret until Tuesday, even from the Office of Hawaiian Affairs, which allocated ceded lands monies to fund Nai Aupuni and the election.
"From the start, Nai Aupuni has had as its goal to create a path so that Hawaiians may formally engage in a much-needed discussion about self determination and our future," Asam said. "We anticipated that this path would have twists and turns and some significant obstacles. But we are committed to proceeding to the aha, where this long overdue conversation can take place.
"The United States Supreme Court, their recent ruling doesn't prevent us from continuing on this path and having that discussion."
Nai Aupuni announced its elections plans earlier this year, having assembled a roll of about 95,000 Native Hawaiians registered to vote in its process. But the Honolulu-based Grassroot Institute challenged the election on 15th Amendment grounds, arguing that it violates the ban on federal and state governments from using race, color or "previous condition of servitude" to deny a citizen the right to vote.
U.S. District Court Judge Michael Seabright ruled in favor of Nai Aupuni, calling the process a "private election" not bound by the 15th Amendment. The 9th U.S. Circuit Court of Appeals refused to grant an emergency stay, but U.S. Supreme Court Justice Anthony Kennedy granted that request the day after Thanksgiving.
On Dec. 2, the full court granted an injunction, indefinitely blocking the counting of ballots and certification of the election until the 9th Circuit ruled on Grassroot's appeal of the district court ruling. But legal observers said the high court's action was a strong indication that justices felt the challenge to the election would prevail.
"Clearly our lawsuit has brought an end to a discriminatory election," said Grassroot President Kelii Akina in a phone interview with Civil Beat. He called Nai Aupuni's decision to move ahead with the aha without delegate elections "desperate" and said the group is "undercutting its own efforts to even look like a democratic process."
"Changing their rules multiple times further erodes the credibility Nai Aupuni has with the Hawaiian people," added Akina.
Nai Aupuni's decisions came in for sharp criticism from one delegate, University of Hawaii law professor Williamson Chang. He called the group's position on the Supreme Court ruling "an ultimate, 'in-your-face' insult" that "defies the power of the Supreme Court under Article III of the U.S. Constitution and amounts to a fraudulent act to avoid the effect of a Supreme Court injunction."
"The clear message of this action by Nai Aupuni is to establish federal recognition at any cost, even if it requires violating previously settled terms and conditions of the process, 'stacking' the convention with their own representatives and completely ignoring the 15th Amendment and the Voting Rights (Act), which would still be violated, and the procedural due process and substantive due process clause of the 14th Amendment," wrote Chang in an e-mail to Civil Beat.
But Nai Aupuni legal counsel William Meheula said that because the elections have been terminated, the 9th Circuit challenge is now moot and he'll file a motion to dismiss the case. Both he and Asam said that Election America, the company conducting the actual election, has been instructed to seal the ballots already cast, stop the receipt of further ballots and prevent any ballots from being counted.
State Rep. Kaniela Ing, who also was a delegate candidate, said so much has changed about the aha, he hasn't yet determined whether he plans to take part. Nai Aupuni organizers, for instance, promised that once elected, delegates could determine when the aha would take place -- a possibility that now seems off the table. He'll be in legislative session when the convention convenes. "I'm confident I could work something out -- many legislators have full-time jobs -- but not if it's going to affect my service to the people of South Maui," he said.
Ing also has concerns about the expense associated with the aha. Delegates were always intended to receive stipends. But with now as many as 196 being paid, even at what organizers said would be a reduced rate, and Nai Aupuni also having to cover air fare for more delegates traveling in from the mainland, "will the outcomes be worth that much money," he asked.
"I'm going to talk to other possible delegates and try to figure out what the point is now, what the potential outcome is," he said.
Ing said his concerns come from a different perspective than those of the Grassroot Institute. But one of the group's attorneys, former Hawaii Attorney General Michael A. Lilly, also voiced financial concerns.
"Everything about the unconstitutional race-based Nai Aupuni election has been a complete waste," said Lilly in a written statement. "The state spent $4 million creating a native Hawaiian Roll, which will never be used. Then the state wasted an additional $2.5 million on the election that will never happen. …There has been no oversight of the process to ensure its fairness and credibility. The Campaign Spending Commission has no jurisdiction to ensure the election was fair and free of fraud.
"And now after wasting $6.5 million of taxpayer funds, they decide to use delegates that no one elected to hold their aha. Who anointed them? This entire process lacks accountability and credibility."
Meheula said one factor figuring in to the Nai Aupuni decision was the possibility that it might not only lose on 15th Amendment grounds, but 14th Amendment grounds, as well. A decision on that constitutional equal protection clause could have had wide-ranging, disruptive consequences for a range of government initiatives serving Native Hawaiians.
Going forward, Nai Aupuni leaders will continue to meet, monitor aha plans and see how the group can best be supportive of the self-determination conversation. But beyond that, the governance conversations will be the sole province of the convention delegates, who represent a broad range of Native Hawaiian viewpoints and political beliefs.
"One reason we made this move is who makes these determinations? We thought this group is a better group to make those decisions than we are," said Meheula.
------------------------
http://www.timescolonist.com/native-hawaiian-election-cancelled-due-to-litigation-all-candidates-offered-convention-seats-1.2133219
The Times Colonist [Victoria, British Colombia, Canada], December 15, 2015
Native Hawaiian election cancelled due to litigation, all candidates offered convention seats
** Same content under different headline in ABC News
http://abcnews.go.com/Politics/wireStory/organizers-cancel-native-hawaiian-election-court-rules-35787071
Organizers Cancel Native Hawaiian Election After Court Rules
Jennifer Sinco Kelleher / The Associated Press
HONOLULU, Hawaii - A unique election considered a major step toward self-governance for Native Hawaiians was terminated Tuesday because of litigation challenging the process that could take years to resolve.
Still, organizers said they plan to press ahead with a convention next year aimed at continuing their cause.
Native Hawaiians were voting to elect 40 delegates who would meet at the convention to come up with a proposed self-governance document.
However, a group of Native Hawaiians and non-Hawaiians sued to block the election, arguing Hawaii residents who have no Native Hawaiian ancestry were being excluded from it in violation of their constitutional rights.
The challenge reached the U.S. Supreme Court, which recently granted an injunction to stop the counting of ballots until a lower court ruled on an appeal. In response, election organizers extended voting by three weeks and asked the lower court to expedite its decision.
But on Tuesday, organizers announced they would instead abandon the election and offer all 196 candidates seats as delegates for the convention, called aha in Hawaiian, which is scheduled to begin in February and last four weeks.
It's unclear how the larger number of delegates will affect the process, but it's always been uncertain what the convention will be able to achieve.
What happens at the convention will be up to the delegates, but they're expected to organize a leadership structure and "attempt to form documents that would describe a government or set a further path upon which Hawaiians might pursue en route to a nation," said Kuhio Asam, president of Nai Aupuni, an organization created to guide the election process.
Decisions about future voting based on what's decided at the convention will be made when the time comes, Asam said.
"We anticipated that the path would have twists and turns and even some significant obstacles, but we are committed to getting to the aha, where this long-overdue discussion can take place," he said.
The extended voting was to end Dec. 21, but ballots will no longer be received. Votes already cast will be sealed and won't be counted, Asam said.
"Clearly our lawsuit ... has brought an end to a discriminatory election," said Kelii Akina, a plaintiff in the case. "Now, in a desperate move to bypass their failed election and ignore their voter base, Nai Aupuni is undercutting its own efforts to even look like a democratic process."
Native Hawaiians have long sought self-determination, but opinions about what that would look like vary -- from federal recognition, to restoring the overthrown Hawaiian kingdom to dual citizenship.
Former U.S. Sen. Daniel Akaka spent about a dozen years trying to pass a bill that would give Native Hawaiians the same rights extended to many Native Americans and Alaska Natives, such as land and cultural rights.
When it became clear that wouldn't happen, the state passed a law in 2011 recognizing Hawaiians as the first people of Hawaii and laying the foundation for Native Hawaiians to establish their own government.
Then-Gov. Neil Abercrombie appointed a commission to produce a roll of qualified Native Hawaiians interested in participating in such a government.
The commission's chairman, former Gov. John Waihee, said he's still processing Nai Aupuni's announcement.
"At least the positive thing is, it looks like we're going to have a convention," he said.
State Rep. Kaniela Ing, a delegate candidate, said he's not sure he'll accept a seat at the convention.
"If we had known that signing up was a free pass to the table rather than a name on a ballot, the outcome and the process itself would have been completely different," he said.
Suddenly taking away the opportunity to vote for delegates makes a mockery of any effort toward self-governance, said Native Hawaiian community advocate Trisha Keahaulani Watson-Sproat, who has been a vocal critic of Nai Aupuni.
"I don't know how anybody is supposed to take any of this seriously at this point," she said. "I mean, it has the integrity of a Costco membership at this point."
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http://hawaiiindependent.net/story/nai-aupunis-annexation
Hawaii Independent, December 15, 2015
Na'i Aupuni's annexation
Na'i Aupuni's decision to allow all 196 candidates to participate in February's planned convention is an illegal attempt to circumvent the U.S. Supreme Court and proves that its purpose, all along, was to ensure federal recognition.
by Williamson Chang
There has been a dramatic development in the Na'i Aupuni elections. The last we heard was that the election and certification had been put on hold by Justice Kennedy and a majority of the United States Supreme Court. Na'i Aupuni, through its attorneys, now states that the rules have once again changed:
------
"NA'I AUPUNI Update
Dear Voters,
Given that the counting of the votes may be delayed by the legal process for up to a few years, Na'i Aupuni has decided to terminate the election as of today and to offer all 196 candidates the opportunity to serve as 'Aha delegates from February 1 to 26, at a meeting facility in Kailua, Oahu.
One of the main reasons behind this decision to seat all candidates is that they represent a broad-based spectrum of the Native Hawaiian community and Na'i Aupuni wants to seize this rare opportunity to organize Native Hawaiians and to propose a path to self-governance.
A Q&A that addresses many issues concerning this change of events as well as the terms that Na'i Aupuni is offering the candidates to serve as delegates are set forth on the Na'i Aupuni website, naiaupuni.org
Mahalo nui for supporting the Na'i Aupuni process and we encourage you to support the upcoming 'Aha!
William Meheula
Sullivan Meheula Lee
A Limited Liability Law Partnership
-------
In other words:
1) There will be no tabulation of the votes;
2) All 196 candidates will be assembled as the constitutional convention;
3) Although not explicitly stated, those 196 can create a Native Hawaiian governing body; and
4) The Grassroot Institute of Hawaii lawsuit is alleged to now be "moot" or meaningless, as the suit was to stop an election.
While not stated, out of those 196 candidates, the "independence" delegates will be in the minority, thus giving Na'i Aupuni its way in creating a government that meets the Federal conditions for a Federally Recognized tribe. The clear message of this action by Na'i Aupuni is to establish Federal Recognition at any cost, even if it requires violating previously settled terms and conditions of the process, "stacking" the convention with their own representatives and completely ignoring the fifteenth amendment, voting rights (which would still be violated) and the procedural due process and substantive due process clause of the fourteenth amendment.
As to the Supreme Court, this is an ultimate, "in-your-face" insult -- it defies the power of the Supreme Court under Article III of the U.S. Constitution and amounts to a fraudulent act to avoid the effect of a Supreme Court injunction.
The failure to tabulate the vote is being treated as a "non-election" that, therefore, does not trigger either the 15th amendment or the voting rights act -- but that surely cannot be the case. If, in a state election, candidates from one racial group far outnumbered candidates from another racial group, the decision not to tabulate the election and to augment the state legislature to accommodate all who were running -- for the purpose that one race could prevail in the state legislature -- would have the same depraved effect that the fifteenth amendment and the voting rights act sought to end.
Justice Kennedy's order included 1) not tabulating the votes and 2) not certifying the winning delegates. To render all delegates winners is to violate the prohibition by Justice Kennedy of "certifying" winners. His prohibition on certification was clearly intended to prevent the formation and gathering of any "winners," no matter how selected (and even if there are no "losers"), that could comprise a constitutional convention.
Additionally, the Grassroots lawsuit is not necessarily "moot" just because there will be no election. The Grassroots lawsuit was to halt a process in which the election was just one step in a series of steps that would produce a "racially" based federally recognized Indian tribe. Whether the suit is now moot is a question before the Supreme Court of the United States.
The U.S. Supreme Court acted upon its principle in Rice v. Cayetano that the fifteenth amendment and the voting rights act bars race based elections. The decision not to tabulate did not forestall an election, it merely changed the rules of the election such that if any candidate got any vote -- even one -- they would be elected. Or, in other words, the decision to forego the election retroactively changed the number of delegates to be elected from 40 to 196, transgressing the conditions by which the election was established.
The U.S. Supreme Court has does not relinquish its jurisdiction for any case in which a "fraud" is made in an attempt to avoid a clear ruling of the Court. The U.S. Supreme Court inherently has jurisdiction here, under Article III of the U.S. Constitution, to prevent such a fraud.
These are only some of the issues raised with today's action by Na'i Aupuni -- an action that severely challenges the notion that the constitutional convention was a neutral convention. It now appears that the convention had but one purpose: the establishment of federal recognition.
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http://www.civilbeat.com/2015/12/dueling-lawsuits-did-nai-aupuni-allow-too-few-voters-too-many/
Honolulu Civil Beat, December 15, 2015
Dueling Lawsuits: Did Nai Aupuni Allow Too Few Voters? Too Many?
The election has been canceled, leaving in limbo the lawsuits claiming it should have been more inclusive or less inclusive.
By Anita Hofschneider
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.
Read the complaint below:
http://www.slideshare.net/civilbeat/kealoha-v-ige
Read the amicus brief filed in Akina v. State of Hawaii:
http://www.slideshare.net/civilbeat/amicus-brief-kealoha-v-nai-aupuni-56093651
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http://www.staradvertiser.com/hawaii-news/native-vote-called-off-in-reaction-to-top-court/
Honolulu Star-Advertiser, December 16, 2015
Native vote called off in reaction to top court
By Timothy Hurley
Facing the likelihood of a protracted legal fight, Na'i Aupuni said Tuesday it will skip its contentious Native Hawaiian election and go directly to a four-week convention in February with all 196 candidates being offered seats as delegates.
The move, according to the nonprofit, allows it to remove the restraint of a U.S. Supreme Court injunction and move forward in finding a path to Native Hawaiian self-determination.
"We anticipated that this path would have twists and turns and some significant obstacles, but we are committed to proceeding to the aha where this long-overdue conversation can take place," Na'i Aupuni President Kuhio Asam said Tuesday at a downtown Honolulu news conference.
While supporters praised the action as a reasonable way of responding to the challenges ahead, critics blasted the move.
"It's embarrassing," said Walter Ritte, the Molokai activist and former convention candidate who ended up renouncing the election in October. "This thing has been one disaster after another."
Ritte and others contend that Na'i Aupuni is part of a campaign to turn Native Hawaiians into a federally recognized American Indian tribe before President Barack Obama leaves office in early 2017. This end-run around the court, he said, falls in line with that thinking.
"They keep rushing this thing," he said.
Tuesday's move by Na'i Aupuni follows a Dec. 2 injunction issued by the U.S. Supreme Court blocking the Hawaiian election while the 9th U.S. Circuit Court of Appeals considers a lawsuit challenging it.
"Clearly our lawsuit (Akina vs. State of Hawaii) has brought an end to a discriminatory election," Keli'i Akina, president and CEO of Grassroot Institute of Hawaii, said in a statement. "Now, in a desperate move to bypass their failed election and ignore their voter base, Na'i Aupuni is undercutting its own efforts to even look like a democratic process."
Akina added that his organization's legal team is reviewing all options.
Asam said the Na'i Aupuni board decided that canceling the election would be the best way to bring about the long-awaited discussion about self-governance, considering the potential multiyear delay it faces from a lawsuit that accuses the election of being race-based, among other things.
Asam said Election-America, the contractor hired to run the election, has been told to stop taking ballots, to seal any ballots already received and to prevent anyone from counting the votes.
Na'i Aupuni attorney William Meheula said the ballots will never be counted, which will make the Akina litigation moot. He said the group will file a motion to dismiss the lawsuit.
Asam said the Mediation Center of the Pacific has been hired to help lead the convention's initial "instruction week" and assist with organizing the delegates.
During the first week delegates will see presentations on constitution building, federal Indian law, international law regarding de-occupation, decolonization, the rights of indigenous people, constitutional issues that relate to Native Hawaiian self-governance, the ceded-lands claim, background on Hawaiian homelands, kingdom law and constitutions already drafted by sovereignty groups.
"After that, everything that happens at the aha is up to the delegates," he said. "Na'i Aupuni will have no input in their discussions or their decisions."
The candidates were informed of the new plan Tuesday morning. An email asks that they confirm by Dec. 22 whether they intend to accept the terms and attend the convention, which will be held in Kailua starting Feb. 1.
With the number of delegates increasing nearly fivefold, the convention's length was cut in half Tuesday -- from eight weeks to four.
In the email sent to the candidates Tuesday, Na'i Aupuni said it could offer only 20 days of per diem of $50 per day for Oahu candidates, $200 per day for neighbor island candidates and $250 per day for candidates from outside of Hawaii. Breakfast and lunch will be provided, but no financial assistance is available for transportation, lodging and other expenses.
Oahu candidate Keoni Kuoha said that given the challenges facing Na'i Aupuni, canceling the election seemed like a reasonable action to move the process along. And more candidates at the convention, he said, will offer greater variety of viewpoints to discuss the next steps.
Kuoha is part of a group of 19 candidates -- called Na Makalehua -- who had pledged to participate in the election.
He disagreed there's a conspiracy to marginalize Hawaiians by turning them into an Indian tribe.
"Because the final (ratification) vote comes back to the people, there's no way to control the process," Kuoha said.
University of Hawaii professor Davianna McGregor, an Oahu candidate, said she thought it was a mistake to cancel the election and limit the convention.
"It would have been wise to ask for input from the candidates before taking a such a drastic step," she said. "(The Na'i Aupuni board is) not alone -- they need to realize there's a lot of creative thinkers out there who could help see them through the process."
McGregor said she's disappointed the ballots won't be counted because it took courage for some to vote in the face of opposition.
What's more, she said, she's afraid there won't be enough time to build a nation in 20 days.
Williamson Chang, a UH law professor and an "independence" candidate, meaning he wants Hawaii to be separate from the U.S., expressed disappointment with Tuesday's announcement.
In an email, Chang said allowing all 196 candidates as delegates will result in overpowering the independence delegates. He said the majority will have its way in creating a government that meets the conditions for a federally recognized tribe.
"The clear message of this action by Na'i Aupuni is to establish federal recognition at any cost, even if it requires violating previously settled terms and conditions of the process, 'stacking' the convention with their own representatives and completely ignoring" constitutional violations.
As for the Supreme Court, Chang said canceling the election is an ultimate "in-your-face" insult, defying the power of the high court under Article III of the U.S. Constitution and fraudulently avoiding the effect of its injunction.
Former Hawaii Attorney General Michael A. Lilly, an attorney for the plaintiffs suing Na'i Aupuni, said the state has wasted millions on the process, from bankrolling the collection of names for the Native Hawaiian Roll to staging an election that no longer exists.
"And now after wasting $6.5 million of taxpayer funds, they decide to use delegates that no one elected to hold their aha. Who anointed them? This entire process lacks accountability and credibility," Lilly said.
Clarence "Ku" Ching, a former Office of Hawaiian Affairs trustee who has been campaigning as an independence candidate on Hawaii island, said he's not quite sure what to make of the new Na'i Aupuni process, only that he's ready to participate.
"It's going to be interesting," he said. "I hope it doesn't turn out to be a circus, but anything is possible at this point. It should be the best show in town at least for a while."
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http://www.westhawaiitoday.com/news/local-news/na-i-aupuni-terminates-native-hawaiian-election-delegate-conference-still-going-much
West Hawaii Today [Kona], December 16, 2015
Na'i Aupuni terminates Native Hawaiian election, but delegate conference still going on for 'much-needed discussion'
By IVY ASHE Hawaii Tribune-Herald
HILO -- The election process that would have sent delegates to a February constitutional convention intended as a step toward Native Hawaiian self-governance has been canceled in the wake of a U.S. Supreme Court decision.
Na'i Aupuni, the election's organizing body, announced Tuesday that the convention, or 'aha, will still take place, with all 196 delegate candidates invited to attend. Originally, 40 elected delegates were to participate.
Ballots for the election will no longer be received and those that have will be sealed.
The 'aha will be held in Kailua on Oahu and facilitated by The Mediation Center of the Pacific. Its duration has also been changed, from eight weeks to four weeks.
The goal, according to a statement from Na'i Aupuni president Kuhio Asam, remains the same: creating a path for Native Hawaiians to "gather and have a much-needed discussion about self-governance."
"We anticipated that the path would have twists and turns and even some significant obstacles, but we are committed to getting to the 'aha where this long-overdue discussion can take place," Asam said.
Earlier this month, the Supreme Court blocked votes from being counted in the election, which began in November. The decision granted an injunction to a group who argued that Hawaii residents without Native Hawaiian ancestry were being denied constitutional rights by being excluded from the election.
"Clearly our lawsuit has brought an end to a discriminatory election," Keli'i Akina, one of the plaintiffs in the case and president of the Honolulu-based Grassroot Institute, said in a statement issued Tuesday.
In bypassing the election, he said, "Na'i Aupuni is undercutting its own efforts to even look like a democratic process."
The plaintiff group is comprised of both Native Hawaiians and non-Hawaiians. Their case is currently before the 9th U.S. Circuit Court of Appeals, after a U.S. district court in October ruled that the election was a private one and could proceed.
"I think Na'i Aupuni made a very good decision to terminate (the election) because this law case may take years to come to a conclusion," said Fred Cachola Jr. of Hawi, one of the 32 Big Island residents who had been running for seven delegate seats.
In that time, he said, momentum for self-governance would be lost.
"Time lost, enthusiasm lost -- the feeling of Hawaiians not being able to determine a government for themselves," Cachola said. "I think this gives us an opportunity."
Delegate candidates were notified of the changes via email.
Candidate Kaipo Dye of Kurtistown said the decision to terminate the election process was unusual and that he was still considering its implications. His primary concern, he said, was "just representing the best interests now and for generations to come."
Delegate candidate Lei Kihoi, who is also a Big Island representative on the Native Hawaiian Roll Commission, felt that moving forward with the 'aha was a great idea.
"From my perspective, I feel that this is a private election and … it's like any entity that's private, and they (Native Hawaiians) should have the right to assemble," Kihoi said.
She said it was "highly probable" that she would attend the 'aha.
Because of the dramatic increase in the number of delegates, the amount of stipend support provided to candidates attending decreased. Neighbor Island delegates will receive $200 per day, but Na'i Aupuni does not provide support for transportation or lodging.
"Because of the logistics and the timing, I wonder how many of (the delegates) will actually attend," Cachola said.
The Na'i Aupuni website states that the election was funded by money provided by the Office of Hawaiian Affairs through an Akamai Foundation grant. The grant agreement states that OHA will not control or affect Na'i Aupuni's decisions.
OHA learned of the changes "along with the rest of the community," according to the site.
The Associated Press contributed to this report.
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Grassroot Institute of Hawaii
** Email sent to members and friends, December 16, 2015
Do you have 5 minutes to help stop the federal creation of a Hawaiian tribe?
This is your chance to tell the DOI what you think of their involvement in Hawaiian nation-building!
The Na'i Apuni election may be momentarily dead, but that doesn't mean that the state's nation-building effort is. In fact, the decision to walk away from the election and lawsuit demonstrates just how much they are counting on the Department of Interior to legitimize a Hawaiian tribe through executive action.
Although last year's public hearings saw widespread opposition to federal involvement in creating a Hawaiian tribe, the DOI proceeded with its plans. A Notice of Proposed Rule-Making has been published, setting out the procedure for the "recognition of a government-to-government relationship with the Native Hawaiian community."
This is an attempt to circumvent Congress, the Constitution, the democratic process, and the will of the thousands of Native Hawaiians who spoke out against the agency's proposal.
But there is still time to let your voice be heard. Public comments are still open for the DOI's proposed rule. You do not need to be Native Hawaiian to comment. Remember, this is a proposal that will affect everyone who lives in our state. What's more, many Hawaiian activists (like those at Free Hawaii and the Koani Foundation) are speaking out against this rule as well.
To learn more about the proposed rule, click here. Then go here to submit your comments online. Don't worry about what to write -- just express your position on the rule and on the DOI's involvement in creating a Hawaiian tribe.
The state and federal nation-building efforts have never had widespread majority support in Hawaii. We need to demonstrate that this is still the case, despite all of the claims to the contrary. Please feel free to share this message and encourage others to comment on the rule.
Click here to submit your comments online!
** Resolves to regulations.gov webpage for this particular Notice of Proposed Rulemaking
http://www.regulations.gov/?utm_source=Grassroot+Institute+Newsletter&utm_campaign=ab4ca1331f-DOI_Comments_Call_to_Action12_16_2015&utm_medium=email&utm_term=0_9da0f1c1e4-ab4ca1331f-145582113#!documentDetail;D=DOI-2015-0005-2438
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http://www.civilbeat.com/2015/12/nai-aupuni-decision-to-sidestep-legal-challenge-raises-new-legal-issues/
Nai Aupuni Decision To Sidestep Legal Challenge Raises New Legal Issues
A law professor and Nai Aupuni delegate candidate explores the legality and impact of the decision to abandon the election and seat all 196 candidates.
By Williamson Chang
The Hawaiian people are in a real pickle. Nai Aupuni cancelled its delegate elections for a Native Hawaiian governance convention, but then allowed all candidates to become delegates.
I heard Nai Aupuni Board President Kuhio Asam on television Wednesday morning, and though he chose his words carefully, he implied that the 196 newly anointed delegates could draft documents of governance that meet the requirements of the U.S. Department of the Interior's conditions for a government-to-government relationship in the form of a federally recognized tribe.
This obviously raises a great many issues, the most important and immediate of which I'll attempt to address here.
1. Nai Aupuni is contempt of a Supreme Court order.
This double action of Nai Aupuni, I believe, is contrary to the order of the Supreme Court of the United States that 1) the election not take place now (before the issues are fully litigated) and 2) that no one be certified as a delegate. In short, the 15th Amendment of the U.S. Constitution was not meant to prevent race-based elections but to prevent the logical consequence of such race-based elections -- that is, race-based electoral bodies, like a legislature or a water district.
You cannot sidestep the 15th Amendment by creating a process which permits a race-based election, then when declared illegal, allows the governor or some other entity like Nai Aupuni to appoint only persons of one race to the positions that were up for election. That would completely defeat the purpose of the 15th Amendment.
2. Nai Aupuni has no authority -- by statute, charter, bylaw or the consent of the people.
Nai Aupuni has no legal authority to do what it has done. It has no charter, no bylaws, no power delegated by the Legislature or by the Office of Hawaiian Affairs, and no consent from the Native Hawaiian people to establish a constitutional convention. What gave Nai Aupuni the power to combine lists of Native Hawaiians, or the power to extend the deadline to register as a delegate, or the power to extend the voting deadline, or as was done Tuesday, the power to set a new deadline by which so-called candidate-delegates must confirm their interest or lose their right to attend the aha, or governance convention?
Nai Aupuni has no clear mandate to convene an aha. The Native Hawaiian people let Nai Aupuni have these powers in much the same way a party gathers at someone's house for a poker game to played by the rules each player, in turn, makes up.
In that sense, Nai Aupuni was a "party" where a "host," Nai Aupuni, set the rules, and Native Hawaiian electors and candidates simply complied with rules -- rules that no one had the power to enforce. As a candidate, what if I do not register by Dec. 22? Can Nai Aupuni really prevent me from going to its convention in Kailua? Does it have its own police?
3. Convention or Party? Which is it?
What prevents any person, Hawaiian or non-Hawaiian, from attending the Kailua meeting? If we treat, the convention as a "private party" then Nai Aupuni is a "host" -- perhaps it can ask you to leave, but what power does it have to enforce one's exclusion?
Nai Aupuni cannot claim that its rules are binding based on any claim of implicit consent that arises from Hawaiians registering on the roll. Nai Aupuni could only exclude one from the Kailua convention on the grounds that one is trespassing on private property, not because one fails to qualify as some kind of delegate.
Here are my thoughts on some possible problems.
4. Na'i Aupuni is in contempt of the Supreme Court order.
The Supreme Court order denies Nai Aupuni the right to "certify" the election, which must be taken to mean that the Supreme Court is denying Nai Aupuni the right to determine, in any possible fashion, who is going to be a delegate.
5. A right to race-neutral political bodies.
Any attempt of the people at this "party" or "convention" to draft governing documents would be also be in violation of the Supreme Court injunction. The Supreme Court stopped the election because the race-based election was part of a process that would arise from a group that was sufficiently quasi-political, and state sponsored, which would be acting in a political manner and was race-based.
Suppose a Southern state, after the Civil War, held elections allowing only one race to vote for the state legislature. Suppose the Supreme Court applying the 15th Amendment intervened and declared the election unconstitutional. The candidates for the state legislature could not simply skip the election, meet in the state house, as legislators consisting of only one race and start to pass laws as a legislature Such actions would defeat the purpose of the 15th Amendment.
The purpose of the 15th Amendment is not simply to stop race-based elections but to stop race-based or race-biased governmental bodies from being established. The amendment not only protects your right to vote, but protects your right to have race-neutral political bodies, such as legislatures, boards, water districts and other political organizations.
6. Are delegates who go to the February convention technically in violation of the Supreme Court order?
Another important legal and moral question is whether or not candidates who sign up for the convention by Dec. 22, based on Nai Aupuni's fiat, violate the 15th Amendment rights of other individuals by aiding and abetting in an action that is contrary to the spirit of an order of the Supreme Court.
7. What should candidate-delegates do?
The action that should be taken is to address the question to the attorney general of the United States, asking if delegates who participate in the February convention are acting contrary to a court order and violating in spirit the Voting Rights Act and the 15th Amendment.
The same would be true of the mediators hired to guide the convention. They are not being retained for the purpose of leading all the delegates in dancing the hokey-pokey. The mediators are being hired to guide the delegates through a political process which had the original intent of creating a government under the conditions imposed by the Department of the Interior. The Supreme Court order has put a hold on the process of creating a government entity.
8. Can "wanna-be" candidate-delegates participate in the convention?
Nai Aupuni's actions of calling off the election and empowering 196 persons to attend a political convention undermines the premises of the election and convention process. Certain persons such as Brandon Makaawaawa were turned away and not allowed to run because they were "too late."
Now it appears that nothing is ever too late. Moreover, it is now apparent that those who did not run for fear of not garnering enough votes but thought of running would be allowed to participate. Had those persons known that all candidates would be deemed delegates, they would clearly have put in their applications to be candidates. This raises the question as to whether the convention, or "party," should be open to anyone who attempted to be a candidate or even swears that they would have run.
9. Does U.S. District Court Judge Michael Seabright's ruling of "no state action" stand?
Although the Supreme Court did not specifically strike down the ruling of Judge Seabright, my position is that the Supreme Court implicitly rejected his views when they enjoined the election and certification of delegates. For the Supreme Court to reach the question posed by the 15th Amendment, it was necessary that the Court find sufficient "state action."
10. The liability of the U.S. Department of the Interior.
Interior established criteria which demanded a race-based convention, arising from a race-based election. If Nai Aupuni is held to violate the 15th Amendment, then is Interior in some sense secondarily liable for establishing the conditions which require a race based election and convention?
11. The role of the U.S. Department of Justice.
Thus, the United States is split -- between its Department of the Interior and the Civil Rights Division of the Department of Justice. The Justice Department cannot represent both its own Civil Rights Division, which enforces the Voting Rights Act, and the Department of the Interior, which here is contributing to a violation of that act. The Justice Department must hire outside counsel for one of those roles, or create a "Chinese Wall" between the deputy attorney generals who represent the DOI and those in the Civil Rights Division.
12. The liability of the State of Hawaii and OHA.
OHA provided funds that derived from crown and government lands, under a state statute to fund Nai Aupuni in creating both the election and the convention. In a crude sense, OHA simply "laundered" such money by passing it through an entity that supposedly cleansed the money of its state action "taint."
In view of the heightened scrutiny being applied by the Supreme Court, the act of providing the funding raises questions of whether OHA and the state knowingly and intentionally violated the Voting Rights Act. This may create a private cause of action for those harmed under section 1983, which provides damages relief for constitutional torts. However, my opinion on this matter is still in the research phase.
GUEST CONTRIBUTOR Williamson Chang is a professor of Law and member of the faculty senate at the University of Hawaii at Manoa. Professor Chang has been teaching at the University of Hawaii School of Law for 37 years. He specializes in water rights, Native Hawaiian rights, the legal history of Hawaii and conflict of laws.
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http://www.staradvertiser.com/editorial/sovereignty-effort-still-viable/
Sovereignty effort still viable
This is not the outcome the leaders of Na'i Aupuni had envisioned.
The nonprofit organization formed to organize a sovereignty 'aha, or convention -- and others within the Native Hawaiian community anticipating the event -- had hoped elected delegates could be seated at the 'aha.
Instead, in the wake of the election's legal challenges, the certification of the voting results, now never to be announced, has been abruptly canceled. The 'aha itself will go forward, though.
Its organizers saw that as the better option, rather than sitting back and waiting for the court proceedings to play out.
A federal lawsuit contesting the constitutionality of the Hawaiians-only election drew an order from the U.S. Supreme Court to hold off on certifying the results until the appeal is decided.
What remains on the calendar for February is a greatly diminished version of that landmark event.
Anyone who values representative democracy, as most in Hawaii do, would agree that delegates chosen by their constituent group have an additional level of legitimacy.
However, if properly managed, the 'aha could still give dimension to the various approaches to Native Hawaiian self-determination -- even the choice to keep the status quo.
Ultimately, Na'i Aupuni made the best of a bad situation by choosing to move ahead.
"What we're doing is a reasonable reaction to changing circumstances," said Kuhio Asam, the organization's executive director.
That might be true -- as long as the convention is set up for success. But given that it's likely to mushroom in size, keeping discussions focused and productive will be the difficult task of the mediation team hired for that purpose.
The plan was to hire mediators all along, but now that all 196 candidates for the 40 defined delegate seats are invited to participate, it's sure to be unwieldy and challenging, to say the least.
Many critics of the plans are sure to charge that it will be a waste of time and money, because it lacks the validation of an election. After all, developments over the past several years -- creation of the Native Hawaiian Roll Commission, the composition of the roll -- all have pointed toward an election.
That would have elevated the process of the self-governance 'aha from previous conventions because its delegates would have been elected from a broad sector of the Hawaiian community, within the state and from the mainland.
Asam, however, made a cogent point: The larger group of delegates, though unelected, could bring value by widening the discussion to a wider range of viewpoints.
These prospective delegates, he said, are people who were willing to seek election and likely have particular interest in a productive debate.
If some kind of organizing document emerges and the convention decides to put it up for ratification as originally planned, Asam and the group's attorney, William Meheula, acknowledge the prospect that the court battle could resume.
But the outcome of the 'aha is uncertain, they added, and there are paths that could avert a further legal challenge: The delegates could produce a document but opt to open the ratification vote to non-Hawaiians as well, as some in the sovereignty movement have advocated.
Or they could decide to continue meeting and find other private backers to finance a future Native Hawaiian vote.
The grant from the state Office of Hawaiian Affairs that has financed the current 'aha was one source of contention by opponents, who saw the grant as public funds going to an unconstitutional race-based election and Na'i Aupuni as an agent of the state.
That's why it's a prudent decision by Na'i Aupuni to stay out of the 'aha. Even the appearance of control involving OHA funds would bolster the legal case against the convention.
The 'aha, Asam said, still has purpose in advancing the conversation about sovereignty. That's the rational conclusion.
Although voter participation would have offered a course with more robust public standing, at least the organization will have tapped the momentum created by the original process, and there is a chance for progress to be made.
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** Ken Conklin's online comment
This newspaper, together with its two merged predecessors, has been pushing and pushing and pushing a shameful racist agenda for 16 years regarding the Akaka bill and now the regulatory process to create a phony Hawaiian tribe out of thin air. I've lost track of how many horrible editorials and viewpoint-twisted news reports there have been, but by now it must be well over a thousand. It's very sad.
But one good thing is that as people see all this happening and get better educated on the issues, public sentiment is growing against both racial separatism (the tribal concept racially exclusionary for ethnic Hawaiians alone) and ethnic nationalism (restoration of Hawaii as a multiracial independent nation with the latest twist of racial supremacy for ethnic Hawaiians under an assertion of special rights for "indigenous people"). Please see my book "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State" -- 27 copies available in the Hawaii Public Library system, more at various college libraries, or get one as a Christmas stocking stuffer at http://tinyurl.com/2a9fqa We are no longer letting ourselves be scammed by purveyors of twisted history or the tear-jerking bogus "poor and downtrodden" claims made by tycoons of the Hawaiian grievance industry.
The headline of this editorial says "Sovereignty effort still viable." Yes it is. It remains very dangerous. That's why civil rights activists here in Hawaii and around our nation must keep fighting against this evil. I am confident that the Grassroot Institute of Hawaii and the brilliant attorneys at Judicial Watch will continue their hard work -- and their success. The Evil Empire of wealthy and influential race-based institutions will always seek to retain their political power and their bloated bureaucracies of high-paid leaders by any means necessary -- OHA, DHHL, Bishop Estate (rebranded as Kamehameha Schools after scandals made it the focus of loathing and ridicule), the Hawaiian-focus madrassas (charter schools), the propaganda factory known as the UH Center for Hawaiian Sovereignty, Hawaiian Civic Clubs, Papa Ola Lokahi (does a drop of the magic blood really cause the human body to require racially separate healthcare?), etc. etc. These institutions need a Hawaiian tribe to be federally recognized to insulate themselves against lawsuits based on the 14th Amendment Equal Protection clause. We must not let that happen, or our rainbow multiracial society will be splintered irreparably.
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http://www.staradvertiser.com/editorial/decision-to-forgo-election-toxic-for-sovereignty-effort/
Decision to forgo election toxic for sovereignty effort
by Richard Borreca [Commentator on politics on Sundays, Tuesdays and Fridays.]
It turns out that the only way around the U.S. Supreme Court's Rice v. Cayetano decision is to not hold an election.
So coming to an undetermined Windward Oahu spot next year is the convention of the unelected, paid for by Na'i Aupuni, the organization formed by the state Office of Hawaiian Affairs to get around the 15-year-old Rice ruling.
Because, the nation's highest court said that if an election is held using government funds, it has to be open to all voters.
Na'i Aupuni's election was not for everyone, only for those who said they were of Hawaiian ancestry.
OHA wanted to have an election of delegates to a convention to come up with a constitution to set the rules for a Hawaiian government that would be recognized by the federal government.
The Grassroot Institute of Hawaii sued in federal court and after being rejected in lower courts, the Supreme Court then actually stopped the election, asking the lower courts to recheck their thinking.
Na'i Aupuni suddenly had an Oprah moment ("You get a car, you get a car, everyone gets a car") and said that all 196 people who filed as candidates would go to a convention of sorts to be held next year for 20 days in February.
Everyone was a delegate, if not an elected delegate.
Instead of making a constitution, the 196 unelected will chat.
"Na'i Aupuni's goal has always been to create a path so Native Hawaiians can have a formal, long- overdue discussion on self-determination," said Kuhio Asam, Na'i Aupuni president.
On an elemental level, one could argue that everything starts without rules, so if a Hawaiian nation is to be created, it starts from the beginning and the rules flow as it grows, so maybe that is why this looks like the rules are being made up as they go along.
Of course, this new nation is not being chatted up on virgin ground; there are centuries of rules, rights, customs and traditions about forming a government in America.
For instance, there is apportionment. It makes sense to divvy up the delegates according to how many people live in different places.
The original Na'i Aupuni rule was to have 20 delegates from Oahu, seven from Hawaii, two from Kauai, one from Molokai and Lanai, three from Maui and seven from Hawaiian constituencies living out of state.
According to the Na'i Aupuni breakdown, February's "Talk Story" convention could have as many as 110 Oahu delegates and 43 from out of state.
Another question is: Where did Na'i Aupuni come from, anyway?
"OHA reached out to the ali'i trusts, royal societies and other Hawaiian organizations to discuss reorganization of a Native Hawaiian government and nation," Na'i Aupuni's web page explains.
Na'i Aupuni got $3 million from OHA, but because it is a private nonprofit. Na'i Aupuni's meetings, books and records are not public.
"Na'i Aupuni will continue to provide information on the processes and decisions as they unfold," Na'i Aupuni says in a less-than-reassuring web page statement.
Na'i Aupuni did say that it will help out all the unelected with a per diem of $1,000 for Oahu delegates, $4,000 for neighbor islanders and $5,000 for those from the mainland. If everyone comes, that would be an additional $550,000.
Of course, there will be many, many more expenses for clerks, office rent, phones and meals to add to the $6.5 million that critics say has been spent to ready the voter rolls for the election that wasn't held.
Little-kid soccer teams regularly give all the players a trophy for being "a participant." It is doubtful that the meeting in February will result in anything more meaningful.
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** Ken Conklin's online comment
I'm astonished how quickly Mr. Borreca is catching on. His last two commentaries on this topic have been remarkably perceptive, and his low-key sarcasm is most welcome.
I think it's very clear what's happening. Many of the delegates to the tribal con-con are closely associated with OHA, the Hawaiian Civic Clubs, the Council for Native Hawaiian Advancement, etc. OHA and/or CNHA has probably already written a Constitution designed to match the requirements for federal recognition already contained in the Department of Interior Notice of Proposed Rulemaking, so one of their shills will simply bring the document to the convention and it will be adopted. 4 weeks is plenty of time (3 weeks after all the praying, chanting, singing, and history lessons are done). They'll be meeting in an undisclosed location -- shall we call it a bunker? -- in Kailua which has a beautiful beach -- maybe I'll run into them at my Island Snow shave ice place.
The main reason for abandoning the Na'i Aupuni election is that the Grassroot lawsuit would take too much time; and everyone is afraid that if they don't get federal recognition done while Obama is still President, then it will never happen for at least 4 or 8 years, by which time the courts will have ruled the racial entitlement programs unconstitutional. President Trump, or Cruz, or Rubio, takes office at noon on January 20, 2017; and his new leadership at Department of Interior will never tolerate the partitioning of Hawaii along racial lines.
So it's rush-rush-rush for the tribalists, and I'm confident that the great attorneys at Judicial Watch, with help from Grassroot Institute of Hawaii, will figure out a strategy to shut them down with court action at the crucial moments when there's a ratification election for the tribal constitution, or when the Department of Interior proclaims a regulation in the Federal Register ensuring recognition of a Hawaiian tribe, or when Obama simply proclaims an Executive Order on the morning of January 20, 2017 before flying off to become Secretary General of the United Nations.
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http://www.scotusblog.com/2015/12/a-new-test-on-hawaiis-future/
A new test on Hawaii's future?
by Lyle Denniston [Independent Contractor Reporter]
Lawyers for a group of Hawaiian residents challenging a move to create a new nation of native Hawaiians within the state have told a lower court that they may make a return trip to the Supreme Court to deal with a major shift in the other side's tactics. An election interrupted by the Supreme Court early this month has now been cancelled, and plans are moving ahead for a constitutional convention in February.
The fight over a significant alteration in the culture and governance of the fiftieth state had been focused on an election of delegates to such a convention, but voting was to be limited to those who could claim native ancestry. The challengers, contending that such an arrangement violated voter equality guaranteed by the Fifteenth Amendment, persuaded a Supreme Court majority to temporarily block the counting and approval of the balloting results. The sponsors of the election have contended that the entire matter was a private effort, affecting only native Hawaiians, and was not an official state project.
Because the Court's order had not blocked the final days of balloting, the election continued for several days. However, on December 15, the private firm that had been handed the task of staging the election (Na'i Aupuni) abruptly cancelled the election. Leaders of the group cited "the ongoing litigation" over the plan to create an entity like an Indian tribe with full sovereign status among native Hawaiians.
The group said it would move ahead with plans for a four-week convention in February, to ponder the next move, perhaps including the writing of a constitution. They invited all 196 candidates who ran as candidates for delegate seats to become delegates without anything further except their consent.
Meanwhile, the validity of the election has continued, at least nominally, as a live dispute in the U.S. Court of Appeals for the Ninth Circuit, with the challengers opening brief scheduled to be filed on December 23. Citing the cancellation of the election by Na'i Aupuni, the challengers have now asked for a two-week postponement of the due date for their brief.
At a minimum, their lawyers said, the shift in tactics will require changes in that brief and, they added, "may change the litigation in ways more fundamental than alteration of briefs." One of the possible responses, the lawyers said, will be to ask the Supreme Court to take new action to stop the process. They also said they would consider the option of dismissing the pending appeal in the Ninth Circuit. They did not indicate what might follow such a dismissal.
"Determining the appropriate course of action," the filing in the Ninth Circuit said, "will require (and already has required) time-consuming and substantive consultations between and among counsel and their clients." They indicated that they would make up their minds within the next two weeks.
The motion for more time to consider the next move was made on Thursday. Attached to the motion is a press release issued by Nai Aupuni announcing the cancellation of the election.
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http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/16542/Latest-On-The-Hawaiians-Only-OprahCostco-Everyone-Wins-Election.aspx
by Robert Thomas, InverseCondemnation, December 18, 2015
Here's the latest on the now-cancelled "Na'i Aupuni" Hawaiians-only poll/election, described by one local commentator as having "the integrity of a Costco membership," and by Election law maven Rick Hasen as the "Oprah" theory of elections after the organization cancelled the extended vote and invited all candidates to come to the convention once the U.S. Supreme Court enjoined the counting of ballots and certification of the election (in other words, all candidates were elected):
Lyle Denniston at SCOTUSBlog reports that the plaintiffs have asked the Ninth Circuit for a two-week extension of time to file their merits briefs. See the motion here.
In the motion, the plaintiffs outline their possible responses to the new development (the cancellation of the election and the seating of all candidates): "Moreover, this factual development may change the litigation in ways more fundamental than alteration of briefs. In particular, possible responses and outcomes range from seeking further injunctive relief from the Supreme Court to dismissal of the appeal and/or the litigation." ("A new test on Hawaii's future?").
At least one observer, U. Hawaiil lawprof Williamson B.C. Chang, thinks that holding the convention with all delegates invited is the "ultimate, 'in-your-face' insult" to the U.S. Supreme Court, because Justice Kennedy's injunction "was clearly intended to prevent the formation and gathering of any 'winners,' no matter how selected (and even if there are no 'losers'), that could comprise a constitutional convention. He sees an agenda here.
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http://www.wsj.com/articles/the-racial-spoils-system-invents-a-tribe-for-native-hawaiians-1450481177
If you're turned away for lack of a subscription, the article is also available here:
http://www.wsj.com/article_email/the-racial-spoils-system-invents-a-tribe-for-native-hawaiians-1450481177-lMyQjAxMTE1NDExOTMxNTk1Wj
The Wall Street Journal, December 19, 2015
The Racial Spoils System Invents a Tribe for Native Hawaiians
By KELI'I AKINA
We call it the "Aloha Spirit": the mood of welcome and inclusion that defines Hawaii, which has been a peaceful multicultural society longer than it has been a U.S. state. Now this harmony is being undermined by an effort to create a semi-sovereign, race-based tribal government.
Throughout the islands' history, there have been efforts to preserve the Native Hawaiian legacy and culture. The Hawaiian Homes Commission Act of 1920, signed by President Warren Harding, set aside roughly 200,000 acres for homesteading by Native Hawaiians, defined as those with at least 50% native blood and ancestry. The act was later enshrined in the state's constitution, and has become one of the ways to qualify who "counts" as Hawaiian in a state where mixed-race families are the norm.
The Hawaiian Homelands aren't independently governed, like a reservation. Instead, Native Hawaiians are granted leases for residential, pastoral or agricultural purposes. The Office of Hawaiian Affairs (OHA) manages more than half a billion dollars in assets and a yearly budget of about $50 million, all of which is specifically intended to benefit Native Hawaiians. The office gives out college scholarships, business loans and grants to schools and cultural groups. If Native Hawaiians were an Indian tribe, they would be among the richest in the country.
The OHA is governed by elected trustees, and for years only Native Hawaiians were allowed to vote for them. But in 1996 a nonnative citizen challenged this policy. Four years later, in Rice v. Cayetano, the U.S. Supreme Court agreed that the racial exclusion was unconstitutional. Thus the claim that protecting benefits for Native Hawaiians would mean creating a special status for them, akin to an Indian tribe.
It hasn't been an easy sell. Hawaiians have never been a tribe, and the Kingdom of Hawaii, which existed from 1795 to 1893, was a multiracial nation. In 2013 four members of the U.S. Commission on Civil Rights wrote a letter to President Obama opposing the unprecedented creation of a political entity based on race. They wrote that this would be like making a tribe out of Pennsylvania's Amish or New York's Hasidic Jews -- groups that are far more separate from mainstream society than Native Hawaiians.
From the perspective of those living in Hawaii, the arguments against a tribe range from the practical -- how would the tribal government change family and criminal law, and would it legalize gambling? -- to the philosophical. Those on the mainland should worry about setting a dangerous precedent that would lead inexorably to what some have called the "balkanization" of the U.S. Do Americans really want to throw out their country's proud history of equal protection and substitute a system in which more and more groups claim special privileges on the basis of ethnicity and ancestry?
The first efforts to create a tribe took place in Congress, with the support of Hawaii's delegation, beginning around 2000. Sen. Daniel Akaka introduced legislation in multiple forms over several years, but it failed to advance. After President Obama took office, a new strategy emerged: The state of Hawaii would give Native Hawaiians a mechanism to create a political entity, and the federal Department of Interior would use executive action to recognize it as a tribe.
In 2011 the state legislature created the Native Hawaiian Roll, a voluntary registration list of voters who, based on ancestry and blood quantum, could theoretically form a tribe. But participation was so low -- nine months after its inception, only 9,300 Native Hawaiians had registered, compared with the goal of 200,000 -- that the Roll Commission bolstered its numbers by importing names from other lists. Then, earlier this year, the Office of Hawaiian Affairs hired Na'i Aupuni, a private organization with significant connections to the OHA and the Roll Commission, to conduct an election for delegates to a convention that would decide the format of a Native Hawaiian government. The state claimed this election was legal because it was a "private" poll, though it was paid for by state funds.
The Grassroot Institute, a free-market think tank I lead, joined with Judicial Watch to organize a group of concerned citizens who sued in August to stop the election. Two of the plaintiffs are non-Hawaiians who object to being barred from voting based on ancestry. The four others are Native Hawaiians who object to being added to the voter roll against their will, or to the loyalty oath that requires voters to affirm their belief in the "unrelinquished sovereignty" of Hawaiians.
Ballots were sent out in November, and the count was scheduled for the end of the month. But on Nov. 27 Supreme Court Justice Anthony Kennedy issued an injunction preventing the state from tallying votes and certifying winners. A week later the full court affirmed that injunction. It seems that the OHA's attempt to dodge the Constitution through semantics won't fly. The case was slated to return to the Ninth Circuit Court, but Na'i Aupuni announced on Tuesday that it is canceling the election altogether. It still plans to hold the constitutional convention in February, but it will simply invite every one of the 196 delegate candidates.
The push for a tribe has always been the agenda of an entrenched elite. Many Native Hawaiians oppose the idea, and are deeply suspicious of the state's involvement. Some have criticized the OHA for spending millions intended for the betterment of Hawaiians in a quixotic effort to protect unfettered access to those same funds. They argue that their trust moneys should be spent on education, housing and health care.
If the courts send an unambiguous message that a tribe or election based on race is an affront to the Constitution, they will not be disappointing a people. Hawaiians have already made their opinion clear -- and they don't support this political power-play masquerading as nation-building.
Mr. Akina is president and CEO of the Grassroot Institute of Hawaii, a free-market think tank in Honolulu.
[Opinion Journal Video [embedded, 3 minutes]
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http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/16537/The-US-Constitution-Still-Applies-to-Hawaii.aspx
The U.S. Constitution Still Applies to Hawaii!
by Keli'i Akina, Ph.D., President/CEO, Grassroot Institute of Hawaii, December 18, 2015
One of the winners in the recent U.S. Supreme Court decision to halt the State of Hawaii's race-based election is the U.S. Constitution itself.
Like an anchor in rough waters, the Constitution has brought back a measure of stability (and sanity!) to Hawaii government and society. And the value of the Constitution is being sounded in many quarters. For example, even pro-sovereignty Hawaiian activists have condemned the state for violating the Constitution.
Just as profound, University of Hawaii law professor Williamson Chang, a leading promoter of the "illegal overthrow" theory, has given Civil Beat a worthwhile statement about the Constitutional amendment that prohibits race-based elections. Musing on the state's effort to bypass the Supreme Court injunction that halted the Na'i Apuni election, Chang criticized the action on the basis of a fundamental Constitutional principle:
"You cannot sidestep the 15th Amendment by creating a process which permits a race-based election, then when declared illegal, allows the governor or some other entity like Nai Aupuni to appoint only persons of one race to the positions that were up for election. That would completely defeat the purpose of the 15th Amendment."
It looks like the Constitution deserves to take a bow.
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http://www.staradvertiser.com/editorial/nai-aupunis-convention-unlikely-to-craft-anything-credible-or-legal/
Na'i Aupuni's convention unlikely to craft anything credible or legal
By Anne Keala Kelly
There are two teams in this game -- one is the state of Hawaii and the other is the Obama administration. Pitifully, though, they're both on the same side pushing one agenda: federal recognition for Hawaiians whether we want it or not.
Na'i Aupuni, a newly formed nonprofit organization contracted and funded by the state, via the Office of Hawaiian Affairs, received millions of dollars to run an election of 40 delegates from a list of 196 volunteer candidates.
The voter registry used for this purpose was pieced together like Frankenstein from multiple lists. Kanaiolowalu, a state-mandated registry that cost millions, was intended to gather 200,000 names, but only managed to get 19,000.
After another state law was passed to fix that failure, Hawaiian names from other registries were poured into a new list.
An estimated 95,000 ballots were mailed out for the delegates' election.
The process moved quickly, most likely in an attempt to outrun blowback from Hawaiians opposed to federal recognition. In the haste, even the ballot itself was worthy of a few lawsuits for voter fraud. One example is the duplicate names appearing on the continent's ballot, allowing some candidates to receive two votes from one ballot.
But Na'i Aupuni trudged on, insisting that at the end of November, 40 delegates would be empowered to create a constitution and form a Hawaiian nation.
Near the end of its election period, Na'i Aupuni extended the voting deadline, moving the goalpost and adding another month after a temporary stay from the U.S. Supreme Court barred counting the votes or certifying winners.
Then, Na'i Aupuni's side of the game fell apart when the court made the injunction permanent.
It seemed as if it was officially over. But like the zombie apocalypse, Na'i Aupuni would not go gently. On Tuesday, it arose from the judicial ashes, brushed itself off and declared that all 196 candidates are now invited to be delegates. That's right, 196 unelected, (mostly) unvetted, inexperienced wannabes with no legal or professional experience will sit down and chisel their profound thoughts about the lahui into a constitution.
What a circus.
Truly, that's what it is, a circus with sideshows and freaks.
How can such an outrageously corrupt process be taken seriously? Even if they manage to create the illusion of legitimacy with their mockery of a constitutional convention, any outcome will likely be rebuked by the public and invalidated in the courts. Who stands to benefit from this mass distraction?
Simultaneous to the Na'i Aupuni fiasco, the other team, President Barack Obama's Department of Interior (DOI), is planning a rule change that will allow him by executive order to confer federal recognition on any Hawaiian entity (or circus).
Secretary of Interior Sally Jewell claimed in her Sept. 29 statement that the proposed new rules "come on the heels of a robust and transparent public comment period," referring to the two weeks of public hearings held in Hawaii in June and July of 2014.
However, she and the rest of the Obama administration turned a deaf ear to the Hawaiians who lined up and testified during those weeks, with 99 percent of them opposing federal recognition.
Instead, Obama's team sided with mail-in postcards supposedly from pro-federal recognition Hawaiians. The federal version of transparency means we can't confirm who mailed those postcards. (We have until Dec. 30 to testify against the DOI rule change at ainalahui.com.)
After 125 years of being lied to, undermined, cheated, manipulated, forcibly assimilated and shamed for even uttering the words "illegal occupation" or "independence" or "the kingdom survives" or "ku'e," Hawaiians are supposed to accept the absence of justice.
We are expected to stay quiet as a handful of our people try to surrender our sovereignty to Uncle Sam.
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http://www.theatlantic.com/politics/archive/2015/12/can-the-constitution-govern-americas-sprawling-empire/421389/
Can the Constitution Govern America's Sprawling Empire?
by Garrett Epps
** Big photo at top of article with caption: Hawaiian activists rally in 2009
The dawn of this century has marked the rise of the American periphery. To understand what I mean, consider presidential politics. In the last century, American voters preferred their presidents to be firmly rooted in the heartland -- Plains, Georgia (Jimmy Carter), Tampico, Illinois (Ronald Reagan), Hope, Arkansas (Bill Clinton).
How things have changed! This year, one candidate, Ted Cruz, is the Canadian-born son of a U.S. citizen mother and a (then) non-citizen father. In 2008, the nation elected the Hawaii-born son of a citizen mother and a non-citizen father -- a president who was partly raised in Indonesia. He defeated a Republican candidate born in the Panama Canal Zone, whose ticket-mate was the governor of Alaska; for re-election, he defeated a Republican presidential candidate whose father was born in Mexico.
We are in what academics might call a "post-colonial" phase. It's not all about the heartland any more.
The U.S. Supreme Court, meanwhile, is still a pretty metropolitan bunch: its members come from New York (only Staten Island doesn't have its own justice), California (2), and New Jersey (1). Chief Justice John Roberts (Indiana) and Justice Clarence Thomas (Georgia) have "salt of the earth" pedigrees -- but both of them reached their posts by work performed entirely inside the Beltway.
On the other hand, Justice Sonia Sotomayor, though Bronx-born, is the child of Puerto Rico-born parents. She wrote her Princeton thesis on Luis Muñoz Marin, political architect of modern Puerto Rico. She, at least, must understand that what today is called "the United States of America" is not the neat construct taught in civics class -- federal structure, three-branch government, happy citizens under what poet W.H. Auden called "liberty's masterful shadow." In the post-colonial age, American government, and citizenship, are more complicated than that.
The mismatch between constitutional theory and national reality began early. Thomas Jefferson believed that the Constitution did not permit the nation to acquire new territory. Faced with the chance to buy Louisiana, however, he bit his tongue. Since then, the Constitution's language hasn't changed, but years of conquest, purchase, and outright theft have given the nation two states, Alaska and Hawaii, physically separated and culturally distinct from the lower 48; hundreds of Indian reservations, Rancherias, Pueblos, and Native Villages, which are separated "dependent nations" incorporated through treaties; a self-governing "Commonwealth" called Puerto Rico; and more than a dozen other "insular areas" such as American Samoa, Guam, and the U.S. Virgin Islands.
Though most news coverage concentrates on the big metropolitan cases -- religious freedom, labor unions, abortion, the Affordable Care Act -- the outposts of empire have a place on this year's docket. Alaska's unique status will come up in Sturgeon v. Frost, the "wandering hovercraft" case, which challenges federal management of the vast majority of the state's land. Indians have already appeared: in Dollar General Corporation v. Mississippi Band of Choctaw Indians, argued in December, the Court must decide whether Indian tribal courts can hear lawsuits against corporations for torts they allegedly commit on the reservation.
Tribes, and tribal courts, will be back at 1 First St NW later this term. Nebraska v. Parker is a challenge to the Omaha Tribe's right to tax a liquor store located on land ceded to the tribe by treaty in 1854 but sold by it to private buyers, under a statute passed by Congress, beginning in 1882. Tribal courts are the issue in United States v. Bryant. In 2011, Michael Bryant, an enrolled member of the Northern Cheyenne tribe of southeastern Montana, was indicted in federal court on two counts of domestic assault, and also charged as a "habitual offender." The "habitual offender" status -- which can raise the sentence to as much as 10 years in prison -- derived from multiple prior misdemeanor domestic-violence convictions in Northern Cheyenne Tribal Court. If those cases had been heard in state or federal court, Bryant would have been entitled to appointed counsel. But the Sixth Amendment doesn't apply to tribal courts, and the Indian Civil Rights Act does not require tribes to supply counsel for offenses that carry less than a year in jail. Bryant is challenging the indictment on Sixth Amendment grounds.
Tribal sovereignty advocates are alarmed -- an amicus brief by the National Congress of American Indians says that Congress has authorized tribal courts to conduct these trials without counsel, and that a victory for Bryant would "seriously impede" efforts to control domestic violence in Indian country -- which is endemic.
The Court is relentlessly whittling away at tribal-court jurisdiction; a victory for Bryant would reduce their power to try members of the tribe, even with congressional approval. During the Dollar General argument, Justice Anthony Kennedy grew visibly perturbed on the bench at the idea that "extra-constitutional entities" could try American corporations. Will that discomfort lead him to hobble the ability of tribes to try even their own members? It's one thing to throw a protective arm over Dollar General; another thing to shield a multiple-count abuser.
Speaking of "sovereignty," is Puerto Rico a "separate sovereign" from the United States, or just a subdivision, like a territorial government? The U.S. acquired Puerto Rico from Spain after the Spanish-American War. At first it was governed directly from Washington, but in 1950 Congress gave the people permission to adopt their own constitution, with elected leaders and a separate court system.
Two criminal defendants were convicted in Puerto Rico of federal gun charges. After their federal trial, the Commonwealth brought charges in its own courts for the same offenses; the defendants moved to dismiss, claiming the prosecution violated the Fifth Amendment rule that no person "shall ... be subject for the same offense to be twice put in jeopardy of life or limb." At least since 1922, the federal courts have applied the "dual sovereignty" doctrine. Because the federal government and a state government are two different "sovereigns," the reasoning goes, each may try a defendant in its own courts without violating the double-jeopardy rule.
But Puerto Rico is not one of the "several states"; the two defendants appealed, and the Puerto Rico Supreme Court earlier this year decided that Puerto Rico is not a separate sovereign from the United States, meaning the defendants could not be retried. The Commonwealth is looking to the Court to reinstate the prosecution. The result will be a paradox either way; if Puerto Rico loses, it will be because its own courts denied its sovereignty; if it wins, it will be because it used the court of a "foreign sovereign" to set aside the decision of its own court.
Down the road, the Court may face the paradoxes of the periphery even more squarely. Last June, a panel of the D.C. Circuit held that Americans born in American Samoa are not U.S. citizens by birth -- despite the Fourteenth Amendment's guarantee that "all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States."
By statute, a person born in Samoa is a "non-citizen national," whatever that means. The plaintiffs demanded recognition as citizens. They were opposed not just by the United States, but also by the Samoan government. That government fears the extension of citizenship to Samoa; it might threaten the territory's laws with the Equal Protection Clause, which might be used to cut back the territory's laws limiting sale of communal and family land to non-Samoans. This week, the plaintiffs announced that former Solicitor General Ted Olson would be representing them in a petition to the U.S. Supreme Court.
And behind the Samoa case is Hawaii, where the state government, with federal support, is trying to restore to native people some shred of the nation they lost when the independent kingdom was annexed by the U.S. in 1898. The plan is to create a "government" elected by descendants of the native people to advocate for their interests -- a new Indian tribe, in effect. When a vote was held for delegates to a constitutional convention, however, opponents of the plan convinced Justice Kennedy to block counting of the votes "pending further order" from him or the Court. (The election has now been cancelled.)
The American Constitution was written for a coastal republic of 13 states and ran into trouble soon after. It now governs, awkwardly, an empire. The metropolitan figures on the Court can decide issues for imperial subjects without much knowledge, or even concern, over what their decisions do to life on the periphery. After 225 years, that paradox remains unresolved.
ABOUT THE AUTHOR
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https://www.youtube.com/watch?v=jQ-beLkxgi4&feature=youtu.be
E Hana Kakou with Keli'i Akina
Title: Is Na'i Aupuni Sponsored by the State Government?
Description: Legal experts Williamson Chang and Michael Lilly discuss with Dr. Akina the problems of the race-based election and convention effort called Na`i Aupuni. Among other issues, they state why this effort is actually sponsored by the Hawaii state government.
** Ken Conklin's summary and comment:
This is a fascinating conversation among three very knowledgeable and well-spoken gentlemen, about a topic of immense importance to the people of Hawaii. Keli'i Akina is the lead plaintiff in the lawsuit to block the Na'i Aupuni race-based election of delegates to a constitutional convention, which is expected to produce a governing document for a wannabe Hawaiian tribe. The document would then be a vital part of an application to the Department of Interior requesting federal recognition of the Hawaiian tribe as having the same rights as all the mainland tribes. The result would be to divide the lands and people of Hawaii along racial lines -- something which has never been done throughout the entire history of Hawaii. Michael Lilly is a distinguished former Attorney General of the State of Hawaii who is an attorney in the lawsuit, and whose ancestor was an Attorney General of the Kingdom of Hawaii. Williamson Chang is a distinguished Professor of Law at University of Hawaii, who is also one of 196 candidates for the convention. Professor Chang indicates that Na'i Aupuni could probably be held in contempt of the injunction of the U.S. Supreme Court which, by a 5-4 majority, prohibited Na'i Aupuni from certifying delegates to the convention. And Professor Chang also expressed concern for himself and the other candidates (now certified as delegates) that they also could be found in contempt of court because their attendance at the convention would make them accessories to Na'i Aupuni's violation of the injunction. Mahalo nui loa to all three participants in this splendid discussion.
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http://www.staradvertiser.com/hawaii-news/hawaiian-convention-signs-nearly-100-delegates/
Hawaiian convention signs nearly 100 delegates
By Timothy Hurley
Nearly 100 delegates have committed to attending the Native Hawaiian self-determination convention planned for February, the nonprofit sponsoring the event said Monday.
The deadline for any other candidates who intend to become convention delegates is tonight at 11:59, according to Na'i Aupuni.
"We are gratified by the large number of persons who have already committed to participating in this conference for self-determination," Na'i Aupuni President Kuhio Asam said in a news release. "We encourage those who have not yet done so to seriously consider confirming their participation by the Dec. 22 deadline."
Na'i Aupuni will announce the names of the delegates Wednesday.
Initially, 196 Native Hawaiians from Oahu, neighbor islands and the mainland signed up to run for 40 delegate slots in a constitutional convention that aims to consider proposals for self-governance.
But last week the Na'i Aupuni board decided to cancel the voting to avoid a potentially lengthy court delay caused by a lawsuit that accuses the election of being unconstitutionally race-based and view-based.
The U.S. Supreme Court on Dec. 2 granted an injunction blocking the election while the 9th U.S. Circuit Court of Appeals considers the lawsuit against it.
INSTEAD of finishing the election, the Na'i Aupuni board Wednesday cut off the voting and offered all 196 candidates seats as delegates.
Also, the convention, or aha, to be held in Kailua, was reduced to four weeks from eight and is now scheduled to start Feb. 1.
The first week will be dedicated to presentations regarding constitution building, federal Indian law, international law regarding de-occupation, decolonization, the rights of indigenous people, U.S. constitutional issues that relate to self-governance, ceded lands and kingdom law.
Peter Adler and Linda Colburn of the Mediation Center of the Pacific will serve as facilitators to lead the first week's informational sessions and help in organizing the group.
After that, what happens at the convention will be up to the delegates without interference by Na'i Aupuni or any government entity, Asam said.
Walter Ritte, a Molokai activist who ran as a delegate and later renounced the election, was nevertheless invited to serve as a convention delegate, Na'i Aupuni officials said.
But Ritte said he still wouldn't participate because he contends the outcome is rigged in favor of a campaign to push federal recognition and essentially turn Hawaiians into an Indian tribe.
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http://www.staradvertiser.com/breaking-news/plaintiffs-go-to-supreme-court-over-cancelation-of-hawaiian-election/
Plaintiffs go to Supreme Court over cancelation of Hawaiian election
By Timothy Hurley
The plaintiffs in the lawsuit against the Native Hawaiian self-governance campaign filed a motion at the U.S. Supreme Court today in an effort to stop Na'i Aupuni's end-run around the election.
A motion of civil contempt was filed against the Office of Hawaiian Affairs, Native Hawaiian Roll Commission, Na'i Aupuni, and other defendants in the case, arguing that the cancellation of the election is in violation of the letter and spirit of the Court's temporary injunction.
The plaintiffs, including Keli'i Akina, president of the Grassroot Institute of Hawaii, asked the court to hold the defendants in contempt and to take all steps necessary to enforce the temporary injunction.
"It's outrageous that Na'i Aupuni and state agencies such as OHA and the Native Hawaiian Roll Commission have ignored and defied the Supreme Court of the United States," Akina said in a statement.
"All citizens of Hawaii, including native Hawaiians, should be appalled at the contempt our own state government is showing to the U.S. Constitution. The majority of Native Hawaiians, in particular, have made it clear that they do not support and are not represented by those trying to push through a state-sponsored, racially discriminatory government-creation process," he said.
The Supreme Court on Dec. 2 granted an injunction blocking the election while the 9th U.S Circuit Court of Appeals considers the lawsuit against it.
The case against Na'i Aupuni is being argued by Judicial Watch, which is assisted by the Grassroot Institute, which had enlisted the plaintiffs including four native Hawaiians and two non-native Hawaiians.
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http://us3.campaign-archive1.com/?u=f9a371d0547f107d938233d66&id=594340fe20&e=4a7cf86850
Grassroot Institute of Hawaii, December 22, 2015 News Release
Contempt Charges Filed Against Government-Sponsored, Race-Based Nation-Building Effort
HONOLULU, HAWAII -- December 22, 2015 -- The plaintiffs in the case Akina v. the State of Hawaii on Tuesday filed a Motion for Civil Contempt at the U.S. Supreme Court against the Trustees of the Office of Hawaiian Affairs, the Native Hawaiian Roll Commission, Nai Aupuni, and other defendants in the case. The motion argues that the respondents are in violation of the letter and spirit of the Court's temporary injunction issued on December 2nd, after which Nai Aupuni cancelled their election and offered to seat all candidates as delegates in a convention to form a government.
The plaintiffs have asked the Court to hold respondents in contempt and take all steps necessary to enforce the temporary injunction.
"It's outrageous that Na'i Aupuni and state agencies such as OHA and the Native Hawaiian Roll Commission have ignored and defied the Supreme Court of the United States," stated Keli'i Akina, Ph.D., president of the Grassroot Institute and a plaintiff in the case. Dr. Akina continued, "All citizens of Hawaii, including Native Hawaiians, should be appalled at the contempt our own state government is showing to the U.S. Constitution. The majority of Native Hawaiians, in particular, have made it clear that they do not support and are not represented by those trying to push through a state-sponsored, racially discriminatory government-creation process."
The case is being argued by Judicial Watch, assisted by the Grassroot Institute of Hawaii, an independent, free-market think tank that has enlisted the plaintiffs. Plaintiffs include four native Hawaiians and two non-native Hawaiians.
Robert Popper of Judicial Watch, lead attorney in the case said, "This whole election was based on a trick, using a non-profit that was really a state agent to accomplish what the State could not. It was all an attempt to get around prior Supreme Court precedent. This latest move of certifying all the candidates as winners is simply another trick. This time it's an attempt to get around the Supreme Court's Dec. 2 injunction."
Michael Lilly, former Hawaii Attorney General and an attorney for the plaintiffs added, "Nai Aupuni cancelled its election and certifies delegates without first asking the US Supreme Court whether that was in violation of its Temporary Injunction. By certifying delegates, Nai Aupuni violated the Supreme Court's order for which we have asked them to be held in contempt of court."
To see all the filing and documents associated with the case of Akina v. Hawaii, go to
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http://www.civilbeat.com/2015/12/scotus-action-sought-on-nai-aupuni/
SCOTUS Action Sought On Nai Aupuni
With a Hawaiians-only election canceled, Grassroot Institute of Hawaii now wants to halt a planned convention on native self-governance.
By Chad Blair
The plaintiffs in Akina v. Hawaii on Tuesday filed a motion for civil contempt at the U.S. Supreme Court, naming Nai Aupuni, the Office of Hawaiian Affairs, the Native Hawaiian Roll Commission and other defendants.
The goal of the Grassroot Institute of Hawaii is to effectively halt Nai Aupuni's plans for a convention in February that could determine a path to self governance for Native Hawaiians, pending the review of a federal appeals court.
Nai Aupuni's plans were announced earlier this month after the group supported by funding through OHA ended the vote counting of a slate of delegates for the convention, known as an aha.
Grassroot Institute, which calls itself "an independent, free-market think tank," argues in its motion that canceling the election is in violation of the "letter and spirit" of the high court's temporary injunction on Dec. 2 that ordered a stoppage of the counting of ballots even as the voting was ongoing.
"It's outrageous that Nai Aupuni and state agencies such as OHA and the Native Hawaiian Roll Commission have ignored and defied the Supreme Court of the United States," said Grassroot head Kelii Akina, the plaintiff for whom the lawsuit is named. "All citizens of Hawaii, including native Hawaiians, should be appalled at the contempt our own state government is showing to the U.S. Constitution."
Grassroot Institute is aided in its legal challenge by the conservative Judicial Watch.
Akina added, "The majority of Native Hawaiians, in particular, have made it clear that they do not support and are not represented by those trying to push through a state-sponsored, racially discriminatory government-creation process."
Nai Aupuni, which calls itself an independent nonprofit, is expected to respond to the contempt motion shortly. This story will be updated accordingly.
Nai Aupuni has argued that it held a private election with the support of funds that came from a foundation that received money from OHA, a quasi-state agency. A U.S. District Court judged has ruled in its favor, but the case is on appeal to the U.S. 9th Circuit.
Meanwhile, Nai Aupuni announced Monday that about 100 people have committed to participate in the February convention. The deadline to register is midnight Tuesday, and delegates will be announced Wednesday -- unless there is further court action.
Regarding the convention, Nai Aupuni said via press release, "The first week of the conference will be dedicated to providing information to the participants regarding constitution building; federal Indian law; international law regarding de-occupation, decolonization, the rights of indigenous people; U.S. Constitution issues that relate to self-governance; the ceded lands; and Kingdom Law."
And this: "Peter Adler and Linda Colburn of The Mediation Center of the Pacific will serve as facilitators to lead the first week's informational component and assist in organizing the group. Thereafter, the course and results of the 'Aha will be with the participants and without interference by Na'i Aupuni or any government entity."
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http://www.naiaupuni.org/docs/NewsRelease-NaiAupuniStatementOnGrassrootCivilContemptFiling-122215.pdf
FOR IMMEDIATE RELEASE
NA'I AUPUNI STATEMENT ON GRASSROOT FILING MOTION TO STOP HAWAIIANS FROM MEETING
HONOLULU -- Na'i Aupuni is a Native Hawaiian organization made up of a volunteer board of directors with a mission to provide a path for Native Hawaiians to discuss self-governance. The following statement is in response to a civil contempt motion filed in the U.S. Supreme Court to stop Native Hawaiians from participating in a meeting to discuss a path to self-governance.
"The Supreme Court's December 2 order enjoined Na'i Aupuni from counting the ballots cast in, and certifying the winners of, the election until the Ninth Circuit could rule on Hawaii Federal Judge Seabright's denial of the Akina plaintiffs' motion to enjoin the start of the election. Thereafter, on December 15, Na'i Aupuni terminated the election, and offered all candidates – none of whom were elected by voters – an opportunity to gather to discuss, among other matters, a path to self-governance. Nothing in the Supreme Court order prohibits Na'i Aupuni from making this offer and organizing the gathering. Civil contempt is only appropriate where the court order clearly and unambiguously prohibits the proposed action. Akina plaintiffs' motion is without merit and we will oppose the motion to ensure that the February gathering will go forward."
About Na'i Aupuni
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http://thegardenisland.com/news/state-and-regional/motion-argues-canceled-hawaiian-election-flouts-high-court/article_af7c655f-a5eb-5b75-9005-f551523f3531.html
Motion argues canceled Hawaiian election flouts high court
HONOLULU (AP) -- Opponents of a now-canceled election are asking the U.S. Supreme Court to stop efforts to send all of the candidates to a convention for Native Hawaiian self-governance.
Lawyers representing Hawaiians and non-Hawaiians who sued to stop the unique election said they filed a civil contempt motion with the Supreme Court on Tuesday. Calling off the election and forging ahead with the convention by offering delegate positions to all 196 candidates flouts the court's injunction that blocked the counting of votes and the certification of winners, the motion said.
The Supreme Court granted the injunction earlier this month after a district judge in Honolulu allowed the election to proceed, ruling that it's a private election to establish self-determination for the indigenous people of Hawaii. Opponents say the process unfairly prevents Hawaii residents without Native Hawaiian ancestry from participating.
Nai Aupuni, the organization created to guide the election process and convention, called off the vote last week, and instead offered delegate positions to all 196 candidates. As of Monday, nearly 100 people accepted, Nai Aupuni said. The others had until 11:59 p.m. Tuesday to decide.
"Having been thwarted in choosing delegates through race-based balloting, respondents seeks to achieve the same result through evasion, ... to use the same race-based process to select delegates, hold the convention and referendum, and secure tribal status, before applicants can be heard," the motion said, which also asks for monetary sanctions.
Nai Aupuni said the motion is without merit.
Nai Aupuni leaders said last week they were canceling the election and forging ahead with the convention, or aha in Hawaiian, because the legal battle would take years to resolve.
Some candidates said they decided to accept delegate positions, but with reservations.
"I'm very unhappy that I'm not an elected delegate," said Clarence Ku Ching, traditional subsistence and cultural practitioner on the Big Island. "I believe being elected by the people should be part of the process."
Ching said he reluctantly accepted and is optimistic even though it's not clear what a meeting of a significantly larger group of delegates will be able to accomplish in four weeks. Plans originally called for 40 elected delegates to meet over eight weeks to come up with a self-governance document for Native Hawaiians to vote on.
"I do believe this is an opportunity for Hawaiians to get together and talk story and not necessarily put out a document," Ching said.
Native Hawaiians have long sought self-determination, but opinions about what that would look like vary — from federal recognition, to restoring the overthrown Hawaiian kingdom, to dual citizenship.
Lanakila Mangauil, one of the leaders in the fight against building the Thirty Meter Telescope on Mauna Kea, said he also accepted, despite disagreeing with the process, so that he can be a "voice on the inside" to stop efforts to achieve federal recognition.
Retired Waianae charter school principal Glen Kila also accepted, so that he can promote his belief that the kingdom continues.
Waimanalo sovereignty activist Dennis "Bumpy" Kanahele said he's glad the election got called off and had no qualms about accepting a delegate position.
State Rep. Kaniela Ing said he's leaning toward not accepting because the new timeframe and Kailua convention location could interfere with his legislative duties.
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http://www.staradvertiser.com/hawaii-news/nai-aupuni-convention-challenged
Na'i Aupuni convention challenged
By Timothy Hurley
The Native Hawaiian self-governance campaign run by Na'i Aupuni came under attack once again Tuesday as foes formally asked the U.S. Supreme Court to block its election end run.
The plaintiffs in the lawsuit against Na'i Aupuni filed a motion against the Office of Hawaiian Affairs, the Native Hawaiian Roll Commission, Na'i Aupuni and other defendants in the case, urging the high court to hold them in civil contempt.
The motion argues that the cancellation of Na'i Aupuni's election violates the letter and spirit of the court's Dec. 2 temporary injunction, which blocked the counting of votes and certification of winners while the 9th U.S. Circuit Court of Appeals considers the lawsuit filed in the case.
But Na'i Aupuni said it was confident it could fight off the latest challenge. In a statement, the nonprofit said nothing in the Supreme Court order prohibits Na'i Aupuni from terminating its election and offering all candidates an opportunity to gather and discuss a path to self-governance.
"Civil contempt is only appropriate where the court order clearly and unambiguously prohibits the proposed action," the Na'i Aupuni board said. "(The) motion is without merit and we will oppose the motion to ensure that the February gathering will go forward."
Office of Hawaiian Affairs attorney Robert Klein agreed, saying Na'i Aupuni complied with the court's order and therefore cannot be held in contempt.
"As far as my client OHA is concerned, OHA has done nothing to offend the court's order. OHA neither counts ballots, seats elected delegates nor conducts the election," he said.
Tuesday, meanwhile, was the last day for candidates to declare their intention to join the aha, or constitutional convention, scheduled for February.
The four-week convention was scheduled last week after the Na'i Aupuni board ended the election to avoid a potentially lengthy delay while defending its constitutionality in court. The board said it would seat all 196 candidates who sought election as delegates to the convention.
On Monday, Na'i Aupuni said nearly 100 candidates had agreed to attend the convention, and urged more to sign up before the Tuesday night deadline. The final field of delegates is expected to be announced today.
But the event could be doomed for now if the court agrees with Tuesday's motion.
The plaintiffs, who include Keli'i Akina, president of the Grassroot Institute of Hawaii, asked the court to take all steps necessary to enforce the temporary injunction.
"It's outrageous that Na'i Aupuni and state agencies such as OHA and the Native Hawaiian Roll Commission have ignored and defied the Supreme Court of the United States," Akina said in a statement.
"All citizens of Hawaii, including native Hawaiians, should be appalled at the contempt our own state government is showing to the U.S. Constitution. The majority of Native Hawaiians, in particular, have made it clear that they do not support and are not represented by those trying to push through a state-sponsored, racially discriminatory government-creation process," he said.
The case against Na'i Aupuni is being argued by Washington, D.C.-based Judicial Watch. The conservative foundation, which describes itself as a government watchdog, is being assisted by Grassroot Institute, which had enlisted the plaintiffs -- four Native Hawaiians and two non-Native Hawaiians.
In their lawsuit the challengers contend that a Hawaiians-only election violates voter equity guaranteed by the 15th Amendment. Na'i Aupuni has countered that the entire matter is a private affair, affecting only Native Hawaiians, and is not an official state project.
U.S. District Court Judge J. Michael Seabright agreed with Na'i Aupuni, but the case was appealed to the 9th Circuit Court of Appeals.
The 9th Circuit, meanwhile, refused to temporarily halt the election. The request was moved up to the U.S. Supreme Court, where a court majority agreed, issuing a temporary injunction against the election three weeks ago.
In their motion Tuesday the challengers charge election sponsors with using "gamesmanship" to accomplish a "willful circumvention" of the purpose of the court's order.
The motion asks the court to order the defendants to withdraw the Dec. 15 certification of delegates and prevent any further effort to send delegates to the convention. It asks that the order be enforced with monetary sanctions strong enough to ensure compliance before the convention begins in February.
In addition, the motion asks the court to require Na'i Aupuni to "preclear" any other steps it might take with regard to selection of delegates or holding of a convention while the injunction remains in force.
It also asks for attorney's fees and costs.
Robert Popper of Judicial Watch, lead attorney in the case, said the election was based on "a trick" using a nonprofit that was really a state agent to accomplish what the state could not.
"It was all an attempt to get around prior Supreme Court precedent. This latest move of certifying all the candidates as winners is simply another trick. This time it's an attempt to get around the Supreme Court's Dec. 2 injunction," Popper said in a news release.
Michael Lilly, former Hawaii attorney general and an attorney for the plaintiffs, said Na'i Aupuni erred when it canceled its election and certified delegates without first asking the Supreme Court whether it was in violation of its temporary injunction.
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** Ken Conklin's online comment:
The motion for contempt includes the following: "Court should instruct Respondents to withdraw the December 15, 2015 certification of the delegates and cease and desist in any effort to send delegates to the convention. The Court should enforce this command through monetary sanctions. ... The Court should impose sanctions strong enough to ensure compliance in advance of February 1, 2016 -- the date on which the convention is scheduled to begin."
I believe the logical amount of the fine for contempt of court in this case should be equal to the amount OHA gave to Na'i Aupuni -- isn't that about $4 Million? Na'i Aupuni would have to pay it and would go bankrupt; and the balance of the fine would be paid by OHA.
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http://www.staradvertiser.com/breaking-news/45-wont-participate-in-hawaiian-self-governance-meeting/
45 won't participate in Hawaiian self-governance meeting
Associated Press
There will be 151 Native Hawaiians participating in a gathering to discuss self-governance.
Na'i Aupuni, the organization formed to guide a now-canceled Native Hawaiian election, announced Wednesday that 45 people declined to participate.
An election was under way to select 40 delegates for a constitutional convention when the U.S. Supreme Court issued an injunction that blocked counting the votes. A lawsuit argues the racially exclusive process is unconstitutional.
Na'i Aupuni canceled the election and offered delegate positions to all 196 candidates.
Organizers are now calling them "participants" and the convention a "gathering," as the opponents continue to fight their efforts in court.
State Rep. Kaniela Ing is on the list, but says he won't participate unless accommodations can be made for his legislative duties.
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** Ken Conklin's online comment:
What a ridiculous "news report." Headline says 45 candidates won't participate. Well, how do you know, and what are their names? You reported one of them. Only 44 to go!
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Naʻi Aupuni List of 151 Participants of February ʻaha; 5-page spreadsheet
** Also available on this website at
https://www.angelfire.com/big09/NaiAupuniParticipantList122315.pdf
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http://www.inversecondemnation.com/inversecondemnation/2015/12/more-scotus-action-in-opraheveryone-wins-election.html#.dpuf
More SCOTUS Action In Oprah/Everyone Wins Election
by Robert Thomas, InverseCondemnation, December 23, 2015
Here's your daily dose of election law action (don't worry, land users, we've got one of those in the hopper for today as well), the latest on what has been labeled the "Costco" election and the "Oprah" election. The former premised on the notion that a seat at the convention now has all the worth of a Costco membership, the latter on the action by the purportedly private organization holding the election calling it off and declaring that all candidates could participate after the Supreme Court enjoined ballot counting and result certification.
Well the other shoe has dropped, and the latter action has resulted in a Motion for Civil Contempt, filed yesterday in the U.S. Supreme Court, asking the Court to slap the State, the Governor, OHA and its trustees, and Nai Aupuni (and others, including the ironically-named Akamai Foundation) for violating the Court's injunction that no ballots were to be counted, and the results were not to be certified prior to a ruling on the merits by the Ninth Circuit.
But wait, you say, Nai Aupuni called off the election (after previously extending the deadline by three weeks), and promised to never, never, never count the ballots that had already been submitted. Too clever by half, argues the motion, declaring that all 196 candidates could attend (the election was for 40 seats), was counting the ballots and certifying the election (everyone won):
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The Temporary Injunction prohibited Respondents from "certifying the winners" of "the election" to choose convention delegates. Respondents' announcement that it would seat every delegate candidate violates the letter of that order. Respondents also have violated the spirit of the Temporary Injunction. The Court issued that order to preserve the status quo and thus ensure that Applicants are not denied the right to participate in the process (including the convention) based on their racial ancestry before the Ninth Circuit adjudicates their challenge. Respondents are not permitted to defeat the purpose of the Court's order through gamesmanship.
Announcing that "[a]ll 196 Hawaiians who ran as candidates will be offered a seat as a delegate to the 'Aha," Supp. App. 432a, is certification of those candidates as winners of the election. First, these delegates are "winners" of the election. As Na'i Aupuni has acknowledged, all delegates that will be seated at the convention "ran as candidates" in the election that is a subject of this challenge. Id. The fact that Na'i Aupuni expanded the number of available delegate spots from 40 to equal the number of candidates—rendering the counting of votes unnecessary—does not mean these candidates are not winners. It means that they are all winners. Under Respondents' reasoning, Texas could have evaded Terry v. Adams—which held that the "Jaybird primary" violated the Fifteenth Amendment by excluding African Americans—by allowing every candidate in that primary to run "in the Democratic primaries and the general elections that followed," 345 U.S. 461, 463 (1953), instead of counting the ballots and nominating only one winner. It is inconceivable that the Court would have deemed such gamesmanship to constitute compliance with an order preventing the Jaybirds from nominating a candidate through an electoral process pervaded with racial discrimination. So too here.
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Motion at 8-9.
A better summary and more analysis from SCOTUSblog here: "New move to block Hawaii tribal nation (UPDATED)."
And this, today: Nai Aupuni doubled down and announced the list of "participants" (i.e., the winners of the election).
PDF: Motion for Civil Contempt, Akina v. Hawaii, No. 15A551 (U.S., filed Dec. 22, 2015)
https://www.scribd.com/doc/293933980/Motion-for-Civil-Contempt-Akina-v-Hawaii-No-15A51-U-S-filed-Dec-22-2015
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http://www.scotusblog.com/2015/12/new-move-to-block-hawaii-tribal-nation/
SCOTUS BLOG, December 23, 2015
New move to block Hawaii tribal nation (UPDATED)
by Lyle Denniston Independent Contractor Reporter
A group of Hawaiians challenging the move to set up a new "native Hawaiian" nation within the state returned to the Supreme Court Tuesday, seeking an order to hold the organizers in contempt and further orders to stop the entire process toward establishing sovereignty.
The motion followed cancellation a week ago by the sponsors of an election to select delegates to a constitutional convention for the new tribe-like nation, and the sponsors' decision to seat all of those who ran in the election as delegates to a convention starting February 1. That, the challengers argued, directly disobeys the Supreme Court's December 2 order interrupting the election.
Accusing the sponsors -- the private organization Na'i Aupuni -- and state officials of "gamesmanship," the challengers noted that going ahead with delegate seating and with the convention itself would continue the race-based process of which the election was only the first part. The challengers' ultimate goal, they reminded the Court, was to have full participation by Hawaiians in general in the decision about creating a new sovereign entity within Hawaii. The Supreme Court's order early this month was aimed at the entire process, even if it was technically limited only to barring the counting of the ballots cast and certifying the choice of delegates, the new motion contended.
Although Na'i Aupuni was the chosen sponsor and manager of the election, and made the decision to cancel it, the motion filed on Tuesday also named the state of Hawaii, its governor, other state officials, and others involved in the sovereignty movement.
The motion specifically asked the Justices to take three actions:
First, to order those named in the motion to be in civil contempt, to cure the violation that the challengers claimed had occurred. The Court should order a withdrawal of the appointment of delegates from those who ran in the election, block any further effort to convene the February convention, and order a monetary penalty "strong enough" to ensure that the Court's orders are carried out.
Second, to require those it cited to get a court's official clearance before they take any further steps to name delegates and hold the convention, while the challengers go forward with their pending constitutional challenge, now before the U.S. Court of Appeals for the Ninth Circuit. Such preclearance, under the federal Voting Rights Act, is one of the remedies the challengers are now seeking in the lower courts, they noted.
Third, to order those it cited to pay for the challengers' attorney's fees and costs for the filing of the contempt motion. as part of the remedy for the "willful disobedience" of the Court's December 2 order.
UPDATED: The motion was filed with the full Court and, like other motions, it will go to the full Court for consideration at a future Conference. It is not being treated as an emergency matter with a single Justice having authority to resolve it.
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http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/16575/Leaked-Email-Reveals-Aha-Agenda.aspx
Leaked Email Reveals Aha Agenda
By Andrew Walden
The following has been provided to www.HawaiiFreePress.com by an Aha Delegate.
---------- Forwarded message ----------
** Reformatted by Ken Conklin, but content copied exactly
Aloha All,
This email contains a message from Peter Adler and Linda Colburn with more detailed information about the 'aha schedule. More will be coming from them in the weeks ahead.
We created the following listserve (a single email address that can be used to address the entire group of 'aha participants) aha@akamaifoundation.org to provide you with an interim means of easily communicating amongst yourselves. This listserve is restricted so that only participants can send messages to, and receive messages from, the listserve and each of your email addresses remain private. We will leave this listserve active until you decide amongst yourselves, on whether or not you would like to create your own listserve or use some other means of intra-group communication. If you would like to remove yourself from this listserve, please let me know, at which time I will remove you and inform the remaining participants on the listserve of your removal. As this listserve may have a high number of messages, you can also request to remain on the listserve but change your email account, which can be done pretty quickly/easily. As with all listserves, courtesy and professionalism is requested.
Also included on this listserve will be myself as administrator, and Peter Adler and Linda Colburn, as 'aha facilitators. Linda and Peter will not participate in your group communications but will try to stay alert to and conversant with the issues that emerge so they can better facilitate your earliest discussions. No one else will have access to this listserve, including the Na'i Aupuni directors or their legal counsel.
Mahalo and Mele Kalikimaka!
Louis
****
THE MEDIATION CENTER OF THE PACIFIC, INC.
Bringing People Together to Talk, Negotiate and Resolve Conflict Creatively
245 N. Kukui Street # 206, Honolulu, HI 96817 Tel: 521-6767 Fax: 538-1454
December 23, 2015
Aloha Participants in the Upcoming aha and Happy Holidays!
Peter and I are very honored to have been asked to provide facilitation support for the first two weeks of your upcoming aha. In this letter, we want to introduce ourselves and share some preliminary thinking on how you might best use the time you will have with each other. To be absolutely clear on this, we come to this with no substantive agenda of any sort and are entirely focused on making your process as productive as possible and worthy of the time you will be investing.
1. Who We Are
2. Initial Goals
3. Our Preparation for the aha
4. General Plan for the First Week
5. ELECTRONICS
6. PRE-AHA COMMUNICATION
Linda Colburn & Peter Adler
Attachment-1
Monday Feb 1st
Tuesday Feb 2nd
Wednesday Feb 3rd
Thursday Feb 4th
Friday Feb 5th
Attachment-2
2/1/16 - CONSTITUTION BUILDING – PROCESS AND CONTENTS
2/2/16 - FEDERAL INDIAN LAW – FEDERAL RECOGNITION
2/3/16 - INTERNATIONAL LAW – DE-OCCUPATION, DE-COLONIZATION, INDIGENOUS RIGHTS
2/4/16 - US CONSITUTIONAL ISSUES & CEDED LANDS
2/5/16 - KINGDOM LAW
The Mediation Center of the Pacific, a 501(c)(3) not for profit Aloha United Way Agency, helps Hawaii's people resolve conflicts peacefully within families, schools, businesses and communities.
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http://www.naiaupuni.org/docs/Q&A%20Responses%20to%20Conditional%20Confirmation%20Emails.pdf
Na'i Aupuni Q&A Responses to Conditional Confirmation Emails, Document undated but posted to Na'i Aupuni website December 24, 2015
Q: I understand that several of the 'aha participants "conditionally" accepted, is this true and what were the conditions?
A: About 22 of the 150 'aha participants, send the same or similar email to Na'i Aupuni confirming their participation but noted several conditions, and Na'i Aupuni sent them the following general and specific responses:
"Mahalo for your thoughtful conditions and intentions. Na'i Aupuni's specific responses are set forth below in caps and our general response is as follows:
Na'i Aupuni's primary goal is to convene the candidates so they would have an opportunity to discuss self-governance concerning Native Hawaiians. While Na'i Aupuni will not attempt to control the outcome of the gathering, it is responsible for certain organizational tasks that are too far along to change -- this includes the dates of the meetings, the offered per diem (which many have already accepted) and the retention of experts and facilitators. Effectively organizing a hundred plus individuals, as opposed to forty, to discuss self-governance is difficult and Na'i Aupuni believes that the first week of discussions with experts and the facilitators will help the group organize itself and also provide a base of information to which all participants will simultaneously be exposed. Na'i Aupuni is also reluctant to change its organization course based on the direction from less than all of the participants. Our contracted facilitators Peter Adler and Linda Colburn (and their team) have been actively planning matters in which to effectively and efficiently organize the beginning of the four weeks. Their strategies are inclusive of obtaining the thoughts and opinions of the participants in advance of February 1st 2016.
Conditions
Given the unilateral decision made by Na'i Aupuni to cancel the election of delegates without consultation with candidates -- who have invested substantial effort and resources into this election -- and given other unilateral decisions and process shortcomings throughout the election and up until the present time, I commit to attend the Na'i Aupuni facilitated meeting under the following conditions:
A. The seated participants, referred to by Na'i Aupuni representatives as "delegates," may change characterizations of this opportunity to meet, including but not limited to: the description of themselves as "delegates," the description of this opportunity as an "'aha" or a "convention," and the purpose of this meeting opportunity.
B. The seated participants reserve the power to modify logistical matters, including but not limited to: meeting dates, times, duration, location, capacity-building sessions, processes in preparation for meeting, and decreasing the per diem amounts. I seek to ensure that participants have an opportunity to meet, return to our respective communities to engage and reflect, then regroup with other seated participants, and/or reconvene as a deliberative body. Participants
should also be able to decide on an appropriate day to begin meeting, noting that the current start date is an 'Ole night according to the Hawaiian lunar calendar and not an appropriate time to start a meeting.
C. The seated participants reserve the right to project and determine the outcome of this meeting opportunity.
Intentions
A. I, along with other like-minded former candidates, intend to reach out to all former candidates to encourage everyone to commit to these same or similar conditions to our participation.
B. I, along with other like-minded former candidates, am developing specific suggestions related to this Na'i Aupuni facilitated meeting opportunity, both presently via small group conversations and in the next few weeks through broader conversations, culminating in a large-group meeting to
be held between January 14 and 18 at Punalu'u, O'ahu. We invite and encourage the Board of Directors of Na'i Aupuni, their legal counsel, and any other related support staff to join us.
C. We intend to make recommendations to the Board of Directors of Na'i Aupuni on meeting characterizations, logistics, and other issues pertinent to this Na'i Aupuni facilitated meeting (e.g. use of subject matter experts, the first agenda items, a participant survey on self-governance, Na'i Aupuni referendum responsibilities, etc.). We endeavor for a majority of seated participants to sign on to a set of recommendations to be determined by those participants.
If we don't hear from you to the contrary, Na'i Aupuni will assume that you will participate in the February meetings."
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http://www.staradvertiser.com/hawaii-news/nai-aupuni-proceeding-despite-numerous-issues/
Na'i Aupuni proceeding despite numerous issues
By Timothy Hurley
A total of 152 people were named Wednesday as delegates to a February constitutional convention that will discuss Native Hawaiian self-governance.
But at least a couple of candidates were left off the final list issued by Na'i Aupuni. And others are not happy with the terms of the event.
Office of Hawaiian Affairs Trustee Rowena Akana said she's been on vacation over the past week and wasn't informed about a requirement that she confirm her participation by midnight Tuesday.
"It's a screwup by whomever they hired," Akana said.
She added that she plans to try to persuade the nonprofit board to let her participate.
Rosalie Lenchanko, a retired Honolulu Police Department lieutenant from Waimanalo, said she was left off the list even though she talked with a Na'i Aupuni representative on the phone and confirmed by email as instructed.
Janice Ringler, an OHA employee, was not on the first list released Wednesday, but was added by Na'i Aupuni after it verified that she sent her acceptance well before the deadline and an electronic carrier delivered it past the due date, according to a news release.
As it stands, 152 delegates agreed to the terms of the convention, or aha, which is scheduled to convene at a meeting hall in Kailua in February.
The number represents 77 percent of the 196 people who originally signed up to be candidates before the election was abruptly canceled by Na'i Aupuni Dec. 15.
The cancellation came in response to a U.S. Supreme Court injunction blocking the counting of votes while a lawsuit alleging that the racially exclusive process is unconstitutional is argued before the 9th U.S. Circuit Court of Appeals.
In a move to avoid a legal obstacle that could stall the process for years, the Na'i Aupuni board offered convention seats to all of the candidates, not just the 40 initially planned.
On Monday, the plaintiffs in the lawsuit -- including Kelii Akina of the Grassroot Institute of Hawaii -- filed a motion asking the U.S. Supreme Court to hold Na'i Aupuni and other agencies in civil contempt. The motion accuses the group of violating the letter and spirit of the injunction.
On Wednesday, the Public Interest Legal Foundation filed a brief on behalf of the American Civil Rights Union supporting the appeal and arguing that these kinds of elections should be declared unconstitutional. The libertarian Cato Institute also joined the brief.
The motion is expected to go to the full Supreme Court for consideration at a future conference.
As for the field of delegates, Na'i Aupuni President Kuhio Asam said he was excited that a large group representing a broad cross section of the Native Hawaiian community, from Hawaii and the mainland, will have an opportunity to discuss self-governance.
"Our goal has always been to establish a path to an aha where Hawaiians can have a long-overdue discussion on the future of the Hawaiian people," Asam said in a news release.
"These are Hawaiians who have shown a deep commitment to engage in serious, civil discussions on self-governance. We are very happy and encouraged that so many individuals have made a decision to be participants. They deserve everyone's support," he said.
But state Rep. Kaniela Ing (D-South Maui) said a condition of participation for himself and several others is whether they will be able to fit the convention into their schedules. In Ing's case, the issue is the state Legislature, which is in full swing in February.
"My duties with the Legislature come before anything else," he said. "If it conflicts with my effectiveness, I will not do it."
Ing said he and other candidates want Na'i Aupuni to return some of the promised autonomy regarding scheduling and other logistical concerns back to the delegates.
"Realistically, the way they have it set up now, it will only involve retirees," he said.
Ing also objected to the Feb. 1 start date, noting that it is an 'Ole night, which according to the Hawaiian lunar calendar, is not an appropriate time to start a meeting.
But Na'i Aupuni, in an emailed response to Ing, said it is working under a number of constraints, including the arrangement of transportation and providing of per diem costs for more than 150 delegates.
What's more, Na'i Aupuni is arranging to have experts hold presentations, during the first week, on issues such as constitution building; federal Indian law; international law as it pertains to de-occupation; decolonization; and the rights of indigenous people.
Representatives from the Mediation Center of the Pacific are also scheduled to assist the delegates in organizing. Thereafter, whatever happens at the convention will be left to the participants without interference by Na'i Aupuni or any government entity, Asam said.
The field of delegates includes a variety of individuals from the Native Hawaiian community, ranging from college professors, lawyers, teachers and past and present politicians, to Hawaiian independence warriors such as Dennis "Bumpy" Kanahele, Poka Laenui and Lanakila Mangauil.
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http://www.staradvertiser.com/editorial/old-santa-still-graces-the-new-ala-moana/
Native Hawaiians battle over Na'i Aupuni's 'aha
First, the opponents of the Native Hawaiian convention, or 'aha, sued to stop the certification of a delegate election under way, based on the fact that it was limited to Native Hawaiians, among other issues.
Now that the organizers, Na'i Aupuni, have canceled the election and want to moot the lawsuit, the plaintiffs are complaining about that, as well. The action violates the spirit and letter of the court injunction, they say.
Will the plaintiffs prevail in their argument that the cancellation amounts to contempt of court? Who knows?
The only thing clear at the moment is that this is gearing up to be a long battle.
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http://www.lahainanews.com/page/content.detail/id/532219/Hawaiians-see--Aha-as-opportunity-to-restore-the-sovereign-nation.html?nav=19
Hawaiians see 'Aha as opportunity to restore the sovereign nation
BY LOUISE ROCKETT , Lahaina News
Last week, Dec. 15, the Na'i Aupuni Native Hawaiian election was terminated.
The controversial and sometimes-called canned election process was short-lived.
The Na'i Aupuni press release provided some background about the independent organization formed a year ago with a fully volunteer board of directors.
"It exists solely to help establish a path to an 'Aha, or constitutional convention, where Hawaiians can discuss and explore various options of self-determination," the release noted.
Although the election was cancelled, all 196 candidates seeking to serve at the 'Aha are invited to participate in the four-week long meeting in February on Oahu.
The deadline to RSVP is this week, and the reaction to the news is as disparate as the delegates themselves.
One learned kupuna explained to the Lahaina News in confidence, "Most Hawaiians are united in their agreement that there needs to be change from the political status quo, but there is a fault line, a chasm as deep and old as the overthrow itself. On one side of it, proponents of political independence; the other side, those who support integration, or remaining within the current U.S. system, a.k.a. 'federal recognition.' "
"I have been involved with various sovereignty initiatives since the 1970s, pre-dating the creation of the Office of Hawaiian Affairs," the native elder continued.
"There is a basic divide, and divisions within those divides. I would observe, after all these years, that every independence and integration rivulet has been blocked along the way, but the Hawaiian people have remained undeterred. So when Justice Kennedy (U.S. Supreme Court Justice Anthony Kennedy) stopped the counting of the ballots and announcement of winners, it did not surprise me that Na'i Aupuni decided to proceed with the convention anyway.
"All along, it has been important to keep the momentum going; otherwise, our Hawaiian people would lose hope, which would be the worst thing of all. I, for one, still have hope."
Lahaina News had the opportunity to interview three of the convention delegates.
Bronson Kaahui is representing the Lahaina District.
He graduated from home school, has a degree in history and calls himself a digital nomad. His approach is unique. He is riding a rogue wave in uncharted waters.
"My basic position is direct democracy. I don't think we need a legislature at all. I believe all decisions should be put to a direct vote by 100 percent of the voters," Kaahui wrote to Lahaina News in an e-mail.
"I support online voting and creating a website where all the proposed bills can be read and voted on directly," Kaahui continued.
"Voting should be as easy as 'liking' a status on Facebook. You can either 'like,' 'unlike,' or abstain. If we're going to have a 'government' that supposedly 'represents' us, then that means we should all be in this together and make all decisions collectively."
Keoki Sousa is a delegate from Kihei. He is pro-independence, advocating for the restoration of the nation.
His campaign literature reads: "I am directed by my kupuna to contribute my knowledge, experience and wisdom to join with other leaders to restore our Hawaiian nation as the best path forward for the benefit for our children and grandchildren and all the people of Hawai'i nei."
He looks forward to joining other like-minded patriots at the convention.
"I am a Hawaiian citizen. Our kingdom is the only lawful government in existence," Sousa explained.
Representing the island of Oahu, Hawaiian leader Pu'uhonua Dennis Keiki "Bumpy" Kanahele accepted the invite the day it was received.
He is optimistic and steadfast in his actions to restore the sovereign nation.
"It moves our 2015 political process into the limelight for the world to truly see the suppression of the national sovereignty of the Hawaiian people," he said.
Since the early 1990s, Kanahele and other Native Hawaiians have consulted with Francis A. Boyle.
Boyle is a professor of international law at the University of Illinois College of Law. He received a Bachelor's Degree in Political Science from the University of Chicago; a Juris Doctor Degree, Magna Cum Laude, from Harvard Law School; and Master's and Ph.D. degrees in Political Science from Harvard University.
He authored the book "Restoring the Kingdom of Hawaii, The Kanaka Maoli Route to Independence."
The international human rights advocate was specific in outlining his strategy. He views the constitutional convention as an opportunity.
"I am saying everyone should go there - all kanaka maoli - and the delegates and everyone else should vote to restore the Kingdom of Hawaii and make it clear at this conference you want the kingdom restored, and you don't want an Indian tribe," he noted.
To this end, Kanahele and another delegate have agreed on tactics.
"I was advised by Francis A. Boyle, that on the opening day of the 'Aha, to make a motion on the floor to proclaim the Restoration of the National Sovereignty of the Hawaiian People. The motion would need a second by another delegate or more, and that will not be a problem," Kanahele said.
"Now the motion," Boyle advised, "would be on the floor of the convention for further discussion and education. This move would protect the national sovereignty of the Hawaiian people and return to them their international status as an independent country once again."
Mahealani Wendt lives in Keanae. She spent 32 years as the executive director of the Native Hawaiian Legal Corporation.
About the 'Aha delegates, she said, "I am impressed with the caliber of candidates and have confidence that they can craft a viable proposal for ratification or rejection by the voters. Notwithstanding efforts to hobble and abort the process, legitimacy will ultimately be gauged by voter participation. If participation is poor and the 'Aha fails, we must continue our strivings as a community until there is a greater level of trust and confidence in the process."
She was positive about her vision of the 'Aha outcome: "I would like to see a proposal placed before the voters and decisive voter participation. I believe remaining status quo is unacceptable, but that decolonization and de-occupation as pathways to independence are not viable legal or political strategies at this time.
"I also believe a peoples' right to political self-determination can never be extinguished," Wendt observed, "and, to therefore opt for less than complete independence today does not compromise those options for the future. I, therefore, support establishing a formal political relationship with the U.S., on our terms. Also, home rule and ahupua'a-based management."
Boyle recommends avoiding federal recognition.
"An Indian tribe is a one-way pass to extermination. Look what the United States has done to Indian tribes. You want the restoration of the kingdom, and that's what you're entitled to. The kanaka maoli should insist on their rights," Boyle concluded.
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http://www.staradvertiser.com/features/conference-to-address-native-hawaiian-issues/
Conference to address Native Hawaiian issues
By Pat Gee
Hawaiian sovereignty and the management of Mauna Kea -- where a group of activists has opposed construction of the $1.4 billion Thirty Meter Telescope -- will be among issues discussed by clergy and lay leaders at an upcoming conference.
The Pacific Justice and Reconciliation Center and the Pacific Peace Forum are among the sponsors of the "Essentials Training" conference, which will be held Jan. 15 in Davies Hall at the Cathedral of St. Andrew, 229 Queen Emma Square.
Early registration is required for the event, which aims to "provide critical education and exposure to clergy and lay leaders on important issues emerging today," according to a news release. Check-in is at 8 a.m., with breakfast and lunch included in the $100 fee for Oahu participants, and an additional $50 for those not from Oahu. Financial assistance is available.
"The role of religious leadership and faith institutions is critical to social justice and transformative community collaborations. Many of the Hawaiian issues today are viewed as related to historic injustices," the release said.
Speakers include former Gov. John Waihee, who was governor during the Protect Kahoolawe Ohana controversy and the creation of Office of Hawaiian Affairs; Na'i Aupuni, an independent organization tasked with establishing a path of Native Hawaiian self-governance; Leon Siu, representing the Coalition of Hawaiian Nationals, Kingdom of Hawaii; Kahookahi Kanuha and Lanakila Mangauil, who are among those leading the protest against the Thirty Meter Telescope project at Mauna Kea; and Kaleikoa Kaeo, who will speak about the telescopes at Haleakala.
Participants will be limited to 30, with preference given to clergy and laypersons. New clergy and lay leaders unfamiliar with Hawaiian issues or the community are welcome to attend.
For registration and more information, contact Kahu Kaleo Patterson, president of the PJRC, at 330-3769 or kaleop@gmx.com; Joann Fukumoto, 371-7694 or joumc@aol.com; or Haaheo Guanson of the Pacific Peace Forum, 330-3771 or guanson@me.com.
-----
** Ken Conklin's online comment:
Reverend Kaleo Patterson knowingly used a fake Grover Cleveland proclamation from 1894, cited it as fact, and used it as the basis for a media blitz in 2006 in Hawaii and on the mainland calling for a national day of prayer for restoration of Native Hawaiians and repentance for the overthrow of the monarchy. He repeated his local and mainland propaganda campaign in 2007 and pushed a resolution through the Hawaii legislature citing the joke proclamation as real. In 2008 the Honolulu Star-Bulletin published a story describing the Cleveland proclamation as a fact and refused to publish a correction. In 2010 Patterson and his perennial sidekick Ha'aheo Guanson made a trip to Caldwell N.J. in furtherance of his hoax, where the town council gave him a check for $2920 to defray his expenses. For details see
Patterson's irrational zealotry and repeated embrace of fraudulent claims were important reasons why he lost his position as pastor of Kaumakapili Church, and was rejected by the congregation of Kawaiaha'o Church after being nominated to be pastor there. But the secessionists, and the tycoons of the Hawaiian grievance racket, love him. The timing of this meeting of fraudsters is interesting, coming just when Na'i Aupuni is organizing the February tribal constitutional convention (or whatever they're calling it now). It's also interesting to see the participation of John Waihe'e, and the "peace and justice" center and others who are organizing the Na'i Aupuni convention.
------------------
Honolulu Star-Advertiser online poll: 53% say cancel the Na'i Aupuni convention; 28% say stop the convention until the lawsuit against it is resolved; 19% say continue with convention even without an election.
http://www.staradvertiser.com/staradvertiser-poll/nai-aupuni-u-s-supreme-court-blocked-election-delegates-native-hawaiian-convention-aha-2/
What should Na'i Aupuni do after the U.S. Supreme Court blocked the election of delegates to a Native Hawaiian convention, or 'aha?
C. Cancel the convention; it's contrary to Hawaiian interests (287 Votes)
-----------------------
http://us3.campaign-archive2.com/?u=f9a371d0547f107d938233d66&id=4d5525bc35&e=4a7cf86850
Grassroot Institute of Hawaii, December 29, 2015, newsletter
One Day Left: Say "No!" to Interior Department Rule
by Keli'i Akina, Ph.D., President/CEO, Grassroot Institute of Hawaii
The Grassroot Institute recently submitted its comments
The proposed rule is lengthy, confusing, and not precisely a fun read, but it is important. This is the long-awaited "end run" around Congress that we have been expecting to see from the Administration. Without the ability to create a Hawaiian tribe out of whole cloth, the Department has settled for an attempt to "recognize" a Hawaiian polity that arises from "independent" action in the community ... like the stalled Na'i Apuni election.
In our comments, we touch on everything from the DOI's lack of authority to recognize a Native Hawaiian government to the divisive and unconstitutional nature of the tribe it envisions. But we need your help to make sure that more voices are heard in opposition to the rule.
Comments are open until tomorrow, December 30th at 11:59 pm EST (6:59 pm HST). To comment online, simply visit the regulations.gov website here:
Then click on the "comment now" button and leave your comments. Remember -- you do not need to be Native Hawaiian for your voice to count. Nor do you need to leave a long or detailed explanation for your position. After all, the DOI claimed to have "overwhelming support" for this rule based on petition signatures and comments that were only a few sentences long.
This is an important opportunity to demonstrate that there is far from "overwhelming support" for the DOI's actions when it comes to Native Hawaiians. Hurry and get your comments in before the deadline!
---------------------
http://new.grassrootinstitute.org/2015/12/grassroot-comments-on-doi-proposed-rule/
Grassroot Institute of Hawaii, Testimony to Department of Interior regarding proposed regulation to recognize Hawaiian tribe, submitted December 29, 2015
Grassroot Comments on DOI Proposed Rule
The Secretary of the Interior has proposed an administrative rule to establish a government-to-government relationship with the Native Hawaiian community, dependent on that community creating a polity that satisfies the Department's requirements for participation. Below are the Grassroot Institute's comments on the proposed rule. To submit your own comments, go to:
The Grassroot Institute of Hawaii submits these comments in the hopes of persuading the Department of Interior not to pursue the proposed rule outlining a procedure for reestablishing a formal government-to-government relationship with the Native Hawaiian community. Not only does the Department lack the legislative authority to propagate such a rule (which flies in the face of clear indications from Congress that they have not delegated any such authority to the DOI), but the long-term effect of such a rule could have significant negative consequences -- both for the state of Hawaii and for the Native Hawaiian community. Rather than uniting Native Hawaiians, this rule has the potential to create lasting social, political, and economic divides within the Native Hawaiian community.
The Department is well-aware that the issue of political organization -- with or without the involvement of the federal government -- is a deeply contentious one among Native Hawaiians. By rushing this rule forward, there is a high probability that the wished-for political organization will not succeed. Instead, it will precipitate Constitutional challenge and may only end by further fracturing any sense of cultural unity among Native Hawaiian groups.
In short, the proposed rule is ill-founded, ill-considered, and unpopular with large numbers of Native Hawaiians. Its intended result is ill-defined and intrudes on the powers of the legislative branch. Any actions flowing from the rule will undoubtedly find themselves the subject of a legal challenge. To pretend to Native Hawaiians that this rule addresses any of their political or cultural concerns is, frankly, questionable verging on irresponsible.
The DOI lacks the legislative authority to propagate the rule
Though the lengthy background for the proposed rule purports to find the authority to recognize a Native Hawaiian government amongst a variety of distinct legislative actions, the leap is not one that is legally justified. Even the most generous reading of the Acts and history listed does not establish "penumbras" that can be interpreted to allow the unprecedented recognition of a race-based government within United States. The Department has never been granted such power explicitly, and to claim such authority from a variety of administrative duties is an act of stunning overreach.
In fact, not only have representatives of the DOI acknowledged the lack of authority to directly recognize the existence of a Native Hawaiian tribe, but that authority has been specifically repudiated by members of Congress. In 2014, in response to an ANPRM on recognition of a government-to-government relationship with the Native Hawaiian community, Senators Jeff Flake (R-AZ), Lamar Alexander (R-TN), Tom Coburn (R-OK), and Mike Lee (R-UT), wrote a letter to Secretary Jewell, objecting strongly to the Department's ANPRM on legal as well as prudential grounds. In the letter, the Senators reiterate concerns about the constitutionality of a race-based government. They then go on to question the DOI's authority to act in this matter state that this is more properly the domain of the Congress:
"Even if you disagree that the reestablishment of a Native Hawaiian Government would be patently unconstitutional, Congress has not enacted legislation authorizing the Department of the Interior ("the Department") to engage in such a rulemaking. In fact, Congress has repeatedly refused to adopt legislation that would recognize a Native Hawaiian government or reestablish an administrative path for doing so. As such, any unilateral efforts by the Department to move forward administratively are unlawful."
The letter even notes that the ANPRM represents a reversal of previous Department policy, which recognized the need for legislation before the DOI could move forward in recognizing a Native Hawaiian government.
The Senators conclude by naming several "prudential" objections to the Department's actions, noting the unfairness in changing the rules of recognition for one group while others have struggled for years to be recognized under the stricter standard. They also raise the question of whether this would establish a bad precedent, wherein other similarly situated groups (e.g. the Amish) would also be able to seek special privileges.
Nor is this position a new one or a new interpretation of Congress' intent. In September 2013, four members of the US Commission on Civil Rights wrote a letter to President Obama specifically addressing the possibility of an executive action to recognize a Native Hawaiian tribal government: "We believe that provisions of the Akaka bill are both unwise and unconstitutional. Executive action implementing provisions of the Akaka bill would be at least as unwise and unconstitutional." The letter provides evidence that there has been no continuous Native Hawaiian governing entity and that Native Hawaiians are not a tribe. Thus, a key argument of the commissioners is that… "Neither Congress nor the President has to power to create an Indian tribe or any other entity with the attributes of sovereignty. Nor do they have the power to reconstitute a tribe or other sovereign entity that has ceased to exist as a polity in the past."
The recognition of a race-based Native Hawaiian government is barred by the Constitution
Though the language used in justifying the proposed rule attempts to sweep this objection aside, the fact of the matter is that the Constitutional problems inherent in recognition of a race-based government are considerable and cannot be ignored.
The most recent attempt at the creation of a Native Hawaiian government via election and Constitutional Convention (currently in limbo due to a Supreme Court injunction) allowed participation based on the same ancestry requirements mentioned in the Hawaiian Homes Commission Act (which the Department also leans on in quantifying the concept of "community" for the purposes of this rule). A qualified individual:
"Has an ancestor who lived in Hawaii prior to 1778; or is a direct descendant of an ancestor who was eligible for Hawaiian Homes Commission Act in 1921; and has maintained a significant cultural, social or civic connection to the Native Hawaiian community and wishes to participate in the organization of a Native Hawaiian entity and is 18 years of age or over."
The Constitutionality of the election (and any attempt at political organization based on this ancestry requirement) is brought into question by the Supreme Court's decision in Rice v. Cayetano. In attempting to create a Native Hawaiian political organization using ethnicity as a standard for participation, the state is attempting to do precisely what the Court said was proscribed by the Fifteenth Amendment
In Rice, the Court held that the definitions of both "Hawaiian" and "Native Hawaiian" under state law (based on ancestry in the Islands prior to 1778) were racial classifications and that restricting voting rights based on this definition therefore violated the Fifteenth Amendment. That amendment protects citizens against discrimination in the elective franchise based on race, and applies to any election of public officials or in which public issues are decided.
Despite the holding in Rice, the current nation-building effort (and any effort envisioned by the rule, which depends heavily on Hawaiian Home Lands participation) uses ancestry as one of its primary bases for eligibility, excluding anyone who does not have an ancestor who lived in Hawaii before 1778 or is not a descendent of a person eligible for HHCA in 1921. However, the courts have been consistent in rejecting the use of ancestry as a proxy for race, and the conditions of eligibility for participation in the Native Hawaiian election (and therefore, the nation-building process) are in clear violation of the Rice decision and the Fifteenth Amendment.
Even putting aside the question of the Constitutionality of the mechanism that would create a Native Hawaiian government, there is also the very high likelihood that the government itself would fail a Constitutional challenge.
In the aforementioned 2013 letter from four members of the U.S. Commission on Civil Rights to President Obama, the Commissioners noted that it was both a misreading of history and the Constitution to accord tribal status to Native Hawaiians based on an imagined line of descent from the Kingdom of Hawaii:
"[W]hatever the perceived or actual wrongs that were done to native Hawaiian rulers in the late nineteenth century, there was not then a distinct "tribe" of native Hawaiians living separately from the rest of society, and there certainly has not been any in the 120 years since. …
"[T]he efforts to create a tribe are in large part an effort to preserve unconstitutional race-based privileges for Native Hawaiians in the wake of Cayetano v. Rice. The theory is that if Native Hawaiians can be transformed into a tribe, these privileges can be preserved under Morton v. Mancari. This is mistaken. Conferring tribal status on a racial group is itself a violation of the equal protection guarantees of the Constitution. As the Supreme Court recently reiterated in Fisher v. University of Texas at Austin, 'Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people,' and therefore 'are contrary to our traditions and hence constitutionally suspect [citations omitted].' This is especially the case in our increasingly mixed-race society, of which Hawaii is a prime example. It can only sow bitterness and division for otherwise indistinguishable neighbors living side-by-side to be subject to different laws and different privileges because one has 'one drop' of Native Hawaiian blood and the other does not.
"Rewriting history to create a tribe out of the Native Hawaiian race would open a Pandora's Box for other groups to seek tribal status. Cajuns are an identifiable ethnic group in Louisiana who have had a continuous presence there for over two hundred years. Their ancestors may have been none too pleased when Napoleon sold the lands of the Louisiana Purchase to America, and they had no opportunity to assert sovereignty. Should Cajuns be allowed to seek tribal status? Should the Amish of Pennsylvania or the Hasidic Jews of New York be allowed to seek tribal status? Both groups have far more separation from mainstream society, much lower rates of intermarriage, and all encompassing rules governing the lives of members than do Native Hawaiians. Both groups also have histories stretching far back."
No matter what justifications are presented, it is undeniable that the creation of a government based on race and ancestry -- no matter whether created by legislative action or administrative rule -- runs into significant equal protection problems. Claiming that the proposed rule does not create such a government, but merely recognizes one is quibbling. There is no long-existing polity of Native Hawaiians and even the Department's efforts to set boundaries for what can be "recognized" as the voice of Native Hawaiians is heavily dependent on racial qualifications. Not only is such action Constitutionally questionable, but it also creates significant problems for the community itself.
The proposed rule will create division and disunity in the Native Hawaiian community
Perhaps the most disturbing element in the proposed rule can be found in the effort to quantify the "acceptable" level of participation from "qualified" Native Hawaiians so as to permit recognition of a hypothetical government as sufficiently Native Hawaiian. Opponents of the Akaka Bill and a Native Hawaiian tribe have long warned that such a measure would be extremely divisive. Their warnings don't even scratch the surface of what is envisioned in the proposed rule.
It begins with the willful mischaracterization of the so-called "overwhelming" support for the propagation of this rule, support that was most likely found in the form of petition-based letters and comments and is far from an accurate assessment of the way in which the ANPRM was received by the Native Hawaiian community. In 2014, in multiple public hearings, a strong and vocal portion of the Native Hawaiian community expressed its disapprobation of the ANPRM and any federal action related to organization or recognition of a Native Hawaiian government. Though their opponents have dismissed these Hawaiian activists as extremists, to ignore their position is to ignore their very important role within the Native Hawaiian community and their not-inconsiderable following.
Moreover, the low levels of participation in the state's nation-building process, both in terms of sign-ups for the Native Hawaiian Roll and in objections to the delegate election, demonstrate that there is little to no consensus in the Native Hawaiian community on the question of sovereignty and nation-building.
Rather than respect the community's hesitation about putting their fate in the hands of an elite group (of whom many are suspicious), the proposed rule charges ahead with conditions and qualifications for recognizing the political will of an ill-defined "community" that is (again) dependent on blood quantum and ancestry for participation. In a culture that has long embraced racial intermarriage, and where one of the most common concerns is the loss of home land rights for children and grandchildren who have fallen below the blood quantum threshold, this provision is so tin-eared as to border on offensive. A mere 15,000 HHCA leaseholders hold in their hands the ability to change the fates of the more than 500,000 people who identify as Native Hawaiian in the United States. Rather than showing sensitivity to the real concerns of Native Hawaiians, this proposed rule would divide and value them based on HHCA participation and ancestry. It is no exaggeration to say that this rule has the ability to turn families inside out and set cousins at each other's throats.
Conclusion
It is difficult to envision a rule that is more ambitious in its scope and more troubling in its possibilities than this one. At every turn, the Department sweeps aside every principle of restraint, respect for the Constitution, and even the wishes of the community they purport to serve. To say that it is vulnerable to legal challenge vastly understates the situation. In fact, at this moment, elements of the political process discussed within the rule itself (e.g. the state's election based on the Native Hawaiian Roll) are under consideration by the courts.
While the Grassroot Institute has a deep respect for the contributions of the Native Hawaiian people, we feel that the proposed rule will only harm the Native Hawaiian community and ensure that yet more resources will be squandered in pursuit of a quixotic nation-building effort that will ultimately be blocked by the U.S. Constitution.
Thank you for the opportunity to submit our comments.
================
Send comments or questions to:
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(c) Copyright 2015
Kenneth R. Conklin, Ph.D.
All rights reserved
http://grassrootinstitute.us3.list-manage2.com/track/click?u=f9a371d0547f107d938233d66&id=2870695567&e=4a7cf86850
Honolulu Civil Beat, December 17, 2015
Honolulu Star-Advertiser, December 18, 2015, EDITORIAL
Honolulu Star-Advertiser, December 18, 2015
Scotus Blog, Friday December 18, 2015
Latest On The Hawaiians-Only-Oprah/Costco-Everyone-Wins Election
http://www.scotusblog.com/wp-content/uploads/2015/12/15-17134-motion-to-extend.pdf
"Dueling Lawsuits: Did Nai Aupuni Allow Too Few Voters? Too Many?" (by Anita Hofschneider at Honolulu Civil Beat).
The stipends that the organization is offering to those candidates/delegates who show up to the convention. Just whose money is this?
Although Nai Aupuni said the Ninth Circuit appeal was moot ... maybe not, so stay tuned.
[Article posted online Dec. 18, 2015 6:26 p.m. ET and is listed on the editorial webpage on December 19]
The Supreme Court has stopped a race-based election, but not a planned constitutional convention.
Honolulu
Heritage Foundation Senior Legal Fellow Hans von Spakovsky on the Supreme Court's stop to discriminatory elections on the island.
Hawaii Free Press, December 19, 2015
Honolulu Star-Advertiser, December 20, 2015, COMMENTARY
The Atlantic [Magazine], December 20, 2015
The U.S. Supreme Court struggles to stretch a Constitution written for 13 coastal states to encompass non-contiguous states, dependent nations, insular areas, and a commonwealth.
http://cdn.theatlantic.com/assets/media/img/mt/2015/12/Hawaii_Protest/lead_960.jpg?1450709780
GARRETT EPPS is a contributing editor for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.
Mon, December 21; Video 46 minutes
Honolulu Star-Advertiser, December 22, 2015
Honolulu Star-Advertiser, December 22, 2015, Breaking news at 12:01 PM HST
Grassroot Institute says Nai Aupuni has ignored and defied the Supreme Court.
http://new.grassrootinstitute.org/2015/10/akina-v-hawaii-the-documents/
Honolulu Civil Beat, December 22, 2015, breaking news approximately 1:00 PM HST
Tuesday, December 22, 2015
Na'i Aupuni is an independent organization made up of a volunteer board of directors from the Hawaiian community. It exists solely to help establish a path to an 'aha, where Hawaiians can discuss and explore various options of self-determination. Na'i Aupuni was formed in December 2014 and is separate and independent from the Office of Hawaiian Affairs and the State of Hawaii. Further information about Na'i Aupuni and the 'aha can be found at
http://www.naiaupuni.org/.
The Garden Island [Kaua'i], December 23, 2015
Also
http://www.westhawaiitoday.com/news/state-wire/motion-argues-canceled-hawaiian-election-flouts-high-court
West Hawaii Today, December 23, 2015
by JENNIFER SINCO KELLEHER The Associated Press
"Nothing in the Supreme Court order prohibits Nai Aupuni from making this offer and organizing the gathering," the organization said in a statement.
"Although I may disagree with Nai Aupuni's process, I continue to participate with the belief I need to speak," he said.
Honolulu Star-Advertiser, December 23, 2015
Honolulu Star-Advertiser, December 23, 2015, Breaking news at 12:11 PM HST
Posted on Na'i Aupuni webpage December 23, 2015
http://www.naiaupuni.org/docs/NaiAupuniParticipantList-122315.pdf
https://www.angelfire.com/big09/NaiAupuniParticipantList122315.pdf
or can also be referenced at
http://tinyurl.com/jaazs4c
http://www.scotusblog.com/2015/12/new-move-to-block-hawaii-tribal-nation/
http://naiaupuni.org/docs/NaiAupuniParticipantList-122315.pdf
Good thing, because the suspense was just killing us.
UPDATED at 1:10 p.m. (in the final paragraph) to clarify how the motion will be handled by the Supreme Court.
http://www.scotusblog.com/wp-content/uploads/2015/12/Hawaii-contempt-motion-12-22-15.pdf
Hawaii Free Press, December 24, 2015
From: Louis F. Perez III
Date: Thu, Dec 24, 2015 at 5:02 PM
Subject: Additional Info & Listserve
To: (REDACTED)
Louis F. Perez III
The AKAMAI Foundation
1136 Union Mall, Suite 206 Honolulu, HI 96813
Phone: 808.664.3240 Cellular: 808.258.4685
Email: mcp@mediatehawaii.org
We have been retained by the Directors of Na'i Aupini who after the first hour on February 1st will not be present at your meetings. Their job was to get you to the starting line and then step away.
Our work is funded and conducted through Mediation Center of the Pacific, Inc. (MCP) a venerable local 501(c)(3) non-profit agency that provides neutral facilitation and other dispute resolution services in the State of Hawaii. Logistical and meeting management support is provided by Communications Pacific. Their contract is with Na'i Aupuni. Ours is with MCP. Peter and I will be with you for the first two weeks.
You can find our bios and resumes at www.naiaupuni.org or www.mediatehawaii.org. We are also in the process of bringing others onto to our team: additional facilitators and recorders for some working sessions and the provider of some enabling electronic tools that we can use during the meetings.
Our initial facilitation goals, subject to your wishes once you assemble, are to:
(1) Assist you in learning as much as you can from governance experts listed at Attachment-1;
(2) Help you create a procedural charter that describes your agreed-to rules of the road, including how decisions will be made;
(3) Help you elect or select a small hui or committee that can chair matters when we exit after the second week of your work; and
(4) Assist you in reaching agreement on the sequence of topics for the remainder of your substantive deliberations during the second, third, and fourth weeks.
This is a unique, possibly historic opportunity and we will do everything in our power to help you engage in civil, principled, and productive discussions.
We will electronically survey all confirmed participants prior to the February aha to learn more about everyone's process suggestion and content interests. Your responses will help us design a preliminary agenda that is responsive to the collective needs of the group.
While we are still mapping a more specific proposed agenda for the aha, the first and second weeks will definitely require many delicate discussions and decisions that in turn will require you to respectfully introduce yourselves and begin exchanging your ideas and views.
As you know, one of the main objectives for the first week is to ground everyone in a common knowledge base that may help everyone acquire deeper insights into what constitutions and governance models can and can't do. Na'i Aupuni has arranged to bring in a number of local, national and international experts who are listed in Attachment-1. Their presentations, including questions and answers with you, will run approximately 2.5 hours.
Please plan on 9:00am to 5:00pm days February 1-5. See Attachment-1, which will give you a general sense of how are thinking of using our time during the first week.
The plan is to have these presentations, the power point slides the professors may use, and other background materials they might offer as part of their lectures and discussions available to you and the public at Na'i Aupuni's web site. We also plan to provide you with the ability to communicate with each other through a secure list serve.
Some of our brainstorming and input/output discussions will be enhanced electronically. We will be using a meeting technology called "MeetingSift" which is both fun and powerfully useful for large gatherings such as you are about to enter into. It works best if you have a phone, iPad, or portable computer that you bring but this need not be a deterrent if you don't use those devices. We will help you.
As with all communications, comments, ideas, or suggestions please send these to the contact portal at Nai Aupuni (www.naiaupuni.org) rather than to us personally. To ensure the fullest transparency, we prefer to talk with all of you simultaneously rather than some of you off line.
We greatly look forward to working closely with you and wish all of you the greatest success in this important endeavor.
Activities planned for week 1
Morning Welcome, Introductions, Initial Roadmap
Afternoon Professor Zachary Elkins on "CONSTITUTION BUILDING – PROCESS AND CONTENTS"
Discussions and information exchange among participants
Morning Professor Rebecca Tsosie on: "FEDERAL INDIAN LAW AND FEDERAL RECOGNITION"
Afternoon Discussions on rules of the road (Charter building), criteria for a chairing committee, and key functions on Native Hawaiian governance issues and models, including status quo.
Morning Professor Catherine J Iorns Magallanes on: "INTERNATIONAL LAW – DE-OCCUPATION, DE-COLONIZATION, INDIGENOUS RIGHTS"
Afternoon Discussions and information exchange among participants
Morning Discussions and information exchange among participants
Afternoon Professor Melody Kapilialoha MacKenzie on "US CONSITUTIONAL ISSUES & CEDED LANDS"
Morning Professor Davianna McGregor on "KINGDOM LAW"
Afternoon Discussions and information exchange among participants
Scholars and Experts
Zachary Elkins
Department of Government
University of Texas at Austin
https://sites.google.com/site/zachelkinstexas/
Rebecca Tsosie
Regent's Professor of Law and Vice Provost for Inclusion and Community Engagement
Arizona State University
Catherine J Iorns Magallanes
BA, LLB (Hons) Well, LLM Yale
Senior Lecturer in Law
Victoria University of Wellington
SSRN author page: http://ssrn.com/author=115449
Melody Kapilialoha MacKenzie
Professor of Law & Director
Ka Huli Ao Center for Excellence in Native Hawaiian Law
William S. Richardson School of Law, UH-Mānoa
Native Hawaiian Law: A Treatise
http://www.kamehamehapublishing.org/nativehawaiianlaw/
Davianna Pomaikai McGregor
Professor – Ethnic Studies
University of Hawaii at Manoa
CONCEPTUALLY, NA'I AUPUNI HAS NO PROBLEM WITH THE PARTICIPANTS LABELING THEMSELVES AND THE EVENT AS THE MAJORITY DECIDES AND, NA'I AUPUNI SPECIFICALLY NOTES THAT "PARTICIPANTS' AND "MEETING OPPORTUNITY" SEEM REASONABLE UNDER THE CIRCUMSTANCES.
AS NOTED ABOVE, NA'I AUPUNI HAS ALREADY MADE FINANCIAL COMMIMENTS THAT DO NOT ALLOW FLEXIBILITY ON MANY OF THE ITEMS MENTIONED HERE. NA'I AUPUNI ALSO UNDERSTANDS THAT THE MAJORITY OF THE PARTICIPANTS MAY PROPOSE A PROCESS GOING FORWARD AFTER THE MEETINGS IN FEBRUARY. WHILE WE RESPECT THAT FEBRUARY 1st IS AN 'OLE NIGHT, THIS HAS BEEN SET AND PUBLICIZED AS THE START DATE FOR AWHILE NOW AND FINANCIAL AND TIME COMMITMENTS HAVE ALREADY BEEN MADE TO START ON THAT DAY.
AGREED.
NA'I AUPUNI ENCOURAGES PARTICIPANTS TO ENGAGE IN DISCUSSIONS AMONG THEMSELVES AND BEFORE THE MEETINGS BEGIN ON FEBRUARY 1.
NA'I AUPUNI DOES NOT CURRENTLY CONTEMPLATE MEETING WITH PARTICIPANTS BEFORE THE START OF THE MEETINGS ESPECIALLY WITH OUT-OF-STATE AND NEIGHBOR ISLAND PARTICIPANTS UNABLE TO ATTEND. NA'I AUPUNI IS PLANNING ON COMMUNICATING WITH ALL PARTICIPANTS AS MORE INFORMATION BECOMES AVAIALBLE. HOWEVER, IF YOU HAVE A PERSON THAT CAN SPEAK FOR YOUR GROUP OF PARTICIPANTS, WE ENCOURAGE HIM OR HER TO CONTACT LINDA COLBURN OR PETER ADLER.
AGAIN, PLEASE COMMUNICATE ALL SUCH RECOMMENDATIONS TO PETER AND LINDA WHO WILL ALSO BE CONDUCTING A COUPLE OF SURVEYS AND WHO WE BELIEVE YOU WILL FIND ADHERE TO MANY OF THE ORGANIZATIONAL CONCEPTS THAT YOUR GROUP HAS ESPOUSED HERE.
Honolulu Star-Advertiser, December 24, 2015
Honolulu Star-Advertiser, December 24, 2015, Off the News [Mini-editorial]
The Lahaina News [Maui], December 24, 2015
Honolulu Star-Advertiser, December 26, 2015
Features| Religion [regular column every Saturday]
https://www.angelfire.com/hi5/bigfiles3/fraudpattersoncleveland.html
Honolulu Star-Advertiser, December 27, 2015, The Big Q
B. Stop the process until issue can be resolved (151 Votes)
A. Continue with its plans to hold a convention without an election (105 Votes)
http://new.grassrootinstitute.org/2015/12/grassroot-comments-on-doi-proposed-rule/
to the Department of Interior on a proposed rule that sets out "procedures" to establish a government-to-government relationship with the Native Hawaiian community.
http://www.regulations.gov/#!documentDetail;D=DOI-2015-0005-2438
http://www.regulations.gov/#!documentDetail;D=DOI-2015-0005-2438
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Ken_Conklin@yahoo.com
