Taking action on November 27, Justice Anthony M. Kennedy ordered Hawaiian officials to refrain from counting ballots or name the winners of an election in the state in which only one racial group was permitted to vote. The order came in response to an emergency application from Hawaiian residents, not the state of Hawaii, who asserted that the election violates the 15th Amendment of the Constitution, which prohibits racial discrimination in voting.
The election is scheduled to end on November 30. The order from the justice did not stop the voting. Apparently acting on his own, Justice Kennedy’s order may have been fashioned so as to allow the Supreme Court to consider the matter through the weekend.
Funded by the state’s Office of Hawaiian Affairs, eligible voters were choosing delegates to a convention that would prepare a document on self-governance for Native Hawaiians. A 2011 law defines eligible voters as being only descendants “the aboriginal peoples who, before 1778, occupied and exercised sovereignty in the Hawaiian islands.” Native Hawaiians, who are descendants of the Polynesians found on the islands by European explorers, have long sought their designation as Native Americans.
In a decision issued in October, federal judge J. Michael Seabright ruled that the election is a private matter, despite the state funding. When he refused to issue a preliminary injunction blocking it, Seabright wrote “No public official will be elected or nominated; no matters of federal, state or local law will be determined.” He added, “A Native Hawaiian governing entity may recommend change, but cannot alter the legal landscape on its own.” When the U.S. Court of Appeals in San Francisco decided not to intervene, Hawaiians challenging the ruling appealed to Justice Kennedy. They wrote “Enormous political, social and economic consequences are at stake.”
They added, “The delegates chosen through this election will decide whether to adopt a new government that will affect every individual living in the state.” The challengers said, “Applicants will have no remedy if the votes in this election are counted and the results certified…This election cannot be undone.”
In Rice v. Cayetano, the Supreme Court ruled against a section of Hawaii’s state Constitution which permitted only descendants of Native Hawaiians could vote for the leadership of the Office of Hawaiian Affairs, which administers certain programs on their behalf. Justice Kennedy, writing for the majority of the Supreme Court in 2000, declared “Ancestry can be a proxy for race.” Hawaii was represented by John G. Roberts Jr., who was then in private practice. During the George W. Bush administration, he became chief justice of the United States.
Racial exclusion violates basic Hawaiian values, said Kelii Akina - one of the Native Hawaiian plaintiffs. He is the president of public policy think-tank Grassroot Institute of Hawaii. "The Hawaiian Kingdom consisted of citizens of multiples races including Native Hawaiians, Japanese, Chinese, Caucasians and others," he said. "This racial inclusiveness is at the heart of the aloha spirit."
In the new case, Akina v. Hawaii, No. 15A551, the state said the challengers “are seeking nothing less than to halt the private political activity of a group of Native Hawaiians to decide how and whether to move forward with forming a potentially self-governing entity.”
Supporters of the election argue that the vote is crucial since it affords an opportunity to Native Hawaiians that they have not had for more than a century. Clyde Namuo, executive director of the Native Hawaiian Roll Commission and a delegate candidate, has said self-determination is a way for Native Hawaiians to address concerns in the community in areas such as income, education and health. Property rights, especially Native Hawaiian claims to allegedly sacred ground, is another area of contention between supporters and challengers of the election. "The western way of life has not necessarily been good to us," said Namuo last month. "We will be able to control our destiny in a better way if we form our government." Namuo is one of the candidates in the election.
Na’i Aupuni is the new non-profit agency created and funded by the State of Hawaii which is conducting the proximate Native Hawaiian constitutional convention. Its name, when translkated from the original Hawaiian language, is ‘Seizure of Government’ in English. Naʻi Aupuni seeks to elect 40 candidates to write a “Hawaiian” constitution in 40 days. Of the five commissioners on the Kanaʻiolowalu roll commission, three, Naʻalehu Anthony, Mahealani Wendt and Lei Kihoi, along with the roll commission’s executive director, Clyde Namuʻo, have chosen to run as candidates for the Naʻi Aupuni convention.
Hawaii’s state legislature formally approved a process in 2012 to create a roll of “qualified” Native Hawaiians by forming Kanaʻiolowalu, the Native Hawaiian Roll Commission. Only those Native Hawaiians certified by the roll commission could become part of the electorate to create a Native Hawaiian Governing Entity. Under Act 195, Hawaii’s Governor Neil Abercrombie appointed five commissioners to oversee the creation of this Native Hawaiian roll. Their goal was to wage “…a campaign to reunify Native Hawaiians in the self-recognition of our unrelinquished sovereignty…”
Those voting must fulfill three criteria:
They must be 18 years of age or older;
they must satisfy ancestry requirements;
and they must consent to participating in the organization of the Native Hawaiian governing entity.
Having received approximately $2.6 million in state funds, the commission began the process of building the Native Hawaiian roll on July 20, 2012 and ultimately collected somewhere between 9,300 and 40,000 names (depending upon the news source). These figures represent between 2 and 8 percent of the roughly 500,000 Native Hawaiians currently living in Hawaii and abroad. The outcome fell short of Native Hawaiian Roll Commission goal of enrolling 200,000 Hawaiians.
Hawaii then saw the approval of Act 77 (2013) an amendment that allowed the commission to take names from three other State of Hawaiʻi-controlled lists of Native Hawaiians: Office of Hawaiian Affairs’ Operation ʻOhana (1990s), Office of Hawaiian Affairs’ Native Hawaiian registry (2002) and the Office of Hawaiian Affairs’ Kau Inoa list (2004). The latter lists explicitly promoted its political aim: to sign up Native Hawaiians who want to form a Native Hawaiian nation. The inclusion of these lists increased the total number of names on the roll to over 100,000. However, the roll commission has not disclosed how many names came from each list.
Additionally, a nagging issue for the commission is that Kanaʻiolowalu Native Hawaiian roll includes the names of the dead. The commissioners did remove the names of dead Native Hawaiians from the lists that they incorporated into the new Native Hawaiian roll. According to an article
by Noelani Arista – a Native Hawaiian who teaches at the University of Hawai‘i-Mānoa – and Randall Akee – a Native Hawaiian who teaches at UCLA - there are at least 604 deceased individuals on the list.
The two experts, expressing concern that the state of Hawaii manufactured consent on the part of Native Hawaiians to move towards self-governance, wrote:
"The question arises, how can the passage of a recent State of Hawaiʻi legislative amendment manufacture consent to move names from other registries to the Native Hawaiian roll?
How does expressing interest in registering as a “Hawaiian” automatically make you a supporter of the State of Hawaiʻi process to build a Native Hawaiian governing entity? (While there was an option to ‘opt out’ for Native Hawaiians who were added to the Native Hawaiian roll from these other lists, relatively few individuals did so, as an ‘opt out’ is a standard marketing ploy to suppress action.)"