Hawaiian sovereignty issue returns to the courtroom

According to a ruling by the United States Supreme Court, the state of Hawaii can neither restrict nor limit who can vote in Office of Hawaiian Affairs elections.

The court also said Hawaii cannot saywho can run for OHA elections.

Before those two rulings back in 2000, only Hawaiians could vote and run in OHA elections.

That 15-year-old legal history is important now because of a new push to hold a Hawaiian-only election to elect Hawaiian-only delegates to a convention that would “consider different options for Native Hawaiian self-determination,” according to the officials running the election.

But a local organization, the Grassroot Institute of Hawaii, has teamed up Judicial Watch, a conservative Washington, D.C.-based nonpartisan group, to sue in federal court to stop the election.

“We think the issue was decided in Rice v. Cayetano,” says Robert Popper, a Judicial Watch attorney.

Popper is joined in the lawsuit by Michael Lilly, former Hawaii attorney general.

All this is important because the U.S. Interior Department last week started readying itself to take into consideration whatever government entity is proscribed by the convention delegates in Hawaii.

Supporters hope it could be the beginning of something big, like the United States recognizing some form of a Native Hawaiian government. It could also be the beginning of yet another round of excruciating confusion as Hawaiian and non-Hawaiian groups argue over who has the right to claim sovereignty over the Hawaiian islands.

OHA has come up with a tortured process for conducting the election. It gave $2.5 million to a separate organization, the Akamai Foundation, which in turn gave it to another group, Na‘i Aupuni, which then hired Elections-America to hold the election.

Na‘i Aupuni explains on its web page that OHA “is a semi-autonomous state agency and may not legally be able to oversee the delegate election process.

“OHA is providing funds to a fiscal sponsor to use at the direction of Naʻi Aupuni to facilitate an election of delegates … and potentially a ratification vote, all without any control by OHA.”

The group states: “Na‘i Aupuni is not a state agency, it is not controlled by any state agency, and it is not holding a state election. Also, the Native Hawaiian Roll Commission’s enrollment process satisfies concerns raised in Rice v. Cayetano.”

Popper and Lilly, in their lawsuit, pointed out that the Supreme Court previously ruled that even though OHA is unique, “it is apparent that it remains an arm of the state.”

Quoting from the minutes of a February OHA meeting, the suit noted that during a discussion of how the election process can maneuver around the Rice v. Cayetano decision, Peter Apo, an OHA trustee says “this is very tricky navigation required.”

All that movement distracts from the central issue of whether or not a state-sponsored entity can dictate who is allowed to vote.

Moving this issue back to the Supreme Court could then open up new decisions regarding the relationship between Native Hawaiians and the federal government, with the result that the relationship is identical to that of everyone else.

Richard Borreca writes on politics on Sundays, Tuesdays and Fridays. Reach him at rborreca@staradvertiser.com.