Native-Hawaiian Self Determination Election Survives Equal Protection Challenge

By: Mollie Topic

In October 2015, a U.S. district judge sitting in Honolulu denied a motion for preliminary injunction to halt an election that is open only to Native Hawaiians. The litigation in Akina v. Hawaii arises out of the Nai Aupuni election, an election process that is ultimately designed to help Native Hawaiians achieve self-determination.

Native Hawaiians are currently the only remaining indigenous people in the United States that have not been permitted to establish their own government even though activists have been working towards self-determination since the 1970s. There have been efforts to advance this movement at many government levels. Former Senator Daniel Akaka spent over a decade trying to get legislation passed that would confer the same rights on Native Hawaiians that Alaskan Natives and many other Native American groups had achieved. These efforts had been largely unsuccessful until recently when, in 2011, the Hawaiian legislature passed a law, which laid important foundations for the Native Hawaiians to create their own government. Act 195, among other things, codified the self-determination rights of indigenous people and developed a list of Native Hawaiians that could potentially vote in the election. Only certified Native Hawaiians can vote and run as candidates in the Nai Aupuni election process, the feature of the election that the plaintiffs in Akina took issue with.

The plaintiffs, comprised of both Native and non-Native Hawaiians, argued that the election was unconstitutional on First and Fourteenth Amendment grounds. Specifically, the plaintiffs argued that excluding non-Native Hawaiians from voting and candidacy violated the Equal Protection Clause of the Fourteenth Amendment by impermissibly discriminating on the basis of race.

The case’s biggest issue ultimately boiled down to whether the election was a state election or a private election. The State countered against the plaintiff’s claims that the protections of the Due Process Clause apply only to the government and entities that are serving of agents of the state. If it were a state election, it would be subject to the Fourteenth Amendment, but, as the State argued, the Nai Aupuni was a private election, so it could restrict participation to Native Hawaiians.  Judge J. Michael Seabright found for the State, ruling that the election was private and, consequently, could constitutionally limit itself to Native Hawaiian voters.

In reaching his decision, Judge Seabright rejected the plaintiffs’ argument that the significant State involvement made the character of the election public. To support their claim, the plaintiffs identified a $2.6 million grant from a state agency and the involvement of the government-created Native Hawaiian Roll Commission. Despite receiving significant support from the State, Judge Seabright found that Nai Aupuni was “completely independent” from the State. The judge cited a number of factors used to reach his conclusion, including the facts that the election was being implemented by a private contractor and that the election would not result in the appointment of any state officials.

While the motion was denied and the election is set to continue, the plaintiffs maintain their position and are likely to appeal Judge Seabright’s ruling to the Ninth Circuit. Keli’l Akina, one of the named parties and the president of a conservative public policy think tank involved in the litigation, indicated his intention to challenge the motion’s denial: “Today’s ruling is the first step in taking our case to a higher court, where we are confident that the constitutional principles will prevail.”

Despite the plaintiffs’ resolve, the elections are scheduled to continue. The voting will be administered in November through a combination of mail-in ballots and online voting. The results of the election are set to release on December 1st. The elected delegates will then participate in an ‘aha, a convention process scheduled to be held starting in February and running through April. At the ‘aha, it is expect that delegated will draft a self-governing document which can than be submitted for ratification by the Native Hawaiian people.

Many are viewing the ruling and continuation of the election process as an important step forward in securing rights for Native Hawaiians. Bill Meheula, an attorney for Nai Aupuni, spoke on the significance of the election: “Right now [Native Hawaiians] are on the lowest run of the socio-economic status. . . . It’s pretty much documented that indigenous people—if they have self-determination, they have their own government—that it makes a big difference, and for a long time too.”

Others have cited concerns that excluding the eligible general population of Hawaii from being involved in decisions could potentially affect the entire state. Robert Popper, who argued the motion on behalf of the plaintiffs, was quoted as saying “Hawaii’s own attorneys said in open court that this is an historic election—and we represent Hawaiian citizens who can’t vote in it because they are the wrong race. … We think that this is a wrong result.”

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