Election for Native Hawaiians faces federal court challenge

A federal court hearing is set over a lawsuit by people who want to put a stop to an election process that's under way for Native Hawaiians

The lawsuit, filed in August, says it's unconstitutional for the state to be involved in a race-based election. The state argues in court documents that while it had a role in compiling a roll of Native Hawaiians eligible to participate, it's not involved in next month's vote to elect delegates for a convention to determine self-governance for Native Hawaiians.

Tuesday's hearing focused on the plaintiffs' motion for a preliminary injunction. Plaintiffs want the judge to limit voter registration activities or stop the election altogether.

U.S. District Judge J. Michael Seabright, who heard arguments Tuesday, said he'll rule from the bench with an explanation for his decision on Friday, adding he will issue a detailed written order later.

The plaintiffs include two non-Hawaiians who aren't eligible for the roll, two Native Hawaiians who say their names appear on the roll without their consent and two Native Hawaiians who don't agree with a declaration to "affirm the un-relinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-determination." The suit was brought on the plaintiffs' behalf by Judicial Watch, which describes itself as "a conservative, non-partisan educational foundation." 

Native Hawaiians are the last remaining indigenous group in the U.S. that has not been allowed to establish its own government. 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.

In 2011, 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 the roll.

The Native Hawaiian Roll Commission "does not conduct elections, nor set election ability criteria," attorneys for the defendants, including the state, wrote in response to the lawsuit. An independent organization, Nai Aupuni, determined election criteria, the defendants said.

The lawsuit points to nearly $2.6 million from the Office of Hawaiian Affairs, a public agency tasked with improving the well-being of Native Hawaiians, as evidence of the state's involvement.

According to the defendants, the money was provided with the understanding that Nai Aupuni would have autonomy.

The election is to select delegates for a convention, not for an election of public officials, Nai Aupuni said in court documents.

The U.S. Department of the Interior, which recently outlined a proposal for a possible government-to-government relationship if Native Hawaiians want one, took the judge up on his invitation to weigh in on the lawsuit. The department urged the judge not to grant an injunction and pointed out that American Indian tribes hold elections that exclude non-natives.

Seabright allowed plaintiff attorneys to call witnesses: Native Hawaiian Roll Commission Executive Director Clyde Namuo, Office of Hawaiian Affairs CEO Kamanaopono Crabbe and Nai Aupuni President J. Kuhio Asam. It's not clear when Seabright will issue a ruling.

Nai Aupuni leaders say it's crucial that the election moves forward because it presents a unique opportunity that has evaded Native Hawaiians for more than 100 years.

"If this process is stalled in the courts, the (roll commission) list will become stale, (Nai Aupuni's) funding may not be available and if history is a useful compass — it may be decades before funding, a similarly substantial roll, state and federal sensitivity and self-determination zeal among Native Hawaiians converge to bring about another such opportunity," attorneys for Nai Aupuni wrote in court documents.

Al Jazeera and The Associated Press