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Suit to halt Hawaiian vote still open, group says


    Plaintiff attorney Bob Popper, left, shook hands with his client, Keli‘i Akina, center, before a hearing of a panel of the 9th U.S. Circuit Court of Appeals in Honolulu on Friday. Michael Lilly, another plaintiff attorney, is at right. They say their lawsuit to stop a Native Hawaiian election is not moot because another organization could hold a vote in the future.

A group that sued to stop a Native Hawaiian election is persisting with its lawsuit because it fears another race-based vote will happen.

Even though the organizers of a vote to elect delegates to a Native Hawaiian self-governance convention called off the election amid the legal challenges that reached the U.S. Supreme Court, the lawsuit isn’t resolved, a lawyer representing the election opponents argued before a panel of federal appeals court judges in Honolulu Friday.

The group of Hawaiians and non-Hawaiians who sued on the basis that a race-based election is unconstitutional fear that another organization will form to hold another vote in the future, said one of the group’s lawyers, Bob Popper from Washington, D.C.-based conservative group Judicial Watch.

Na‘i Aupuni, the now-dissolved organization that was formed to guide the election, says the lawsuit is moot because the vote was called off and its leaders aren’t attempting a future election.

The election was to select 40 delegates who would meet at a convention to come up with a self-governance document.

A federal district judge in Honolulu ruled last year the purpose of the private election is to establish self-determination for the indigenous people of Hawaii.

The challengers appealed to the 9th U.S. Circuit Court of Appeals and also filed an emergency motion to block the votes from being counted. The appeals court denied the emergency motion, prompting the challengers to appeal to the high court.

Voting was ongoing when the Supreme Court issued an injunction that prevented votes from being counted. Saying the legal battle would take years to resolve, Na‘i Aupuni then called off the election and invited all 196 candidates to participate in a gathering that took place in February.

Plaintiffs argue that the lawsuit isn’t moot because there’s a fundraising effort underway for a ratification vote on a proposed constitution drafted at the gathering. They want the court to order the Office of Hawaiian Affairs not to fund any future vote.

In 2011, the state passed a law recognizing Hawaiians as the first people of Hawaii and the governor appointed a commission to produce a roll of qualified Native Hawaiians interested in participating in their own government.

The Office of Hawaiians Affairs must be prevented “from funneling millions of government dollars to another supposedly private entity under its de facto control for the purpose of holding a ratification vote using the race-based roll,” the plaintiffs say in a court brief last month.

The state isn’t planning any ratification vote, deputies for the state attorney general’s office wrote in a brief: “The Native Hawaiian Roll Commission is not planning, organizing or holding a ratification vote for the proposed constitution, and neither is the governor.”

If another group with enough funding comes along and wants to use the roll for a vote, then the plaintiffs can file another lawsuit, the state’s brief said.

It’s not clear when the 9th Circuit will issue a decision.

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  • I don’t know why this newspaper doesn’t want you to see the actual court battle. The permanent archive for the video of Keli’i Akina v. State of Hawaii runs slightly longer than one hour. It was posted on Friday morning about an hour after the hearing ended. It is now on the U.S. 9th Circuit Court of Appeals website at

    As always, there were three judges, allegedly chosen at random from a group of more than 20. For the Akina case, one of the judges was the Chief Judge, appointed by President Clinton. One judge was appointed first to a federal district court by Clinton and later appointed to the 9th Circuit Court by Obama. The third judge was appointed by President George W. Bush, and was confirmed in the Senate with “yes” votes from every one of the Democrat Senators.

    This lawsuit concerns the race-based election of delegates to the Na’i Aupuni monthlong meeting where a constitution was written for a race-based government for what is expected to be a “Native Hawaiian” Indian tribe as soon as the Department of Interior publishes a final regulation for giving it federal recognition and as soon as another race-based election is held to ratify the constitution. The Grassroot Institute, and Judicial Watch, filed a federal lawsuit to block the election of delegates, on grounds that the Supreme Court decision from Rice v. Cayetano in 2000 ruled that no election of officials for a government agency (OHA) can have any racial restriction on who can vote. In the current situation, the U.S. Supreme Court granted an emergency temporary injunction to stop the counting of votes or publication of results from the election of delegates to the Na’i Aupuni meeting, until the 9th Circuit Court can rule on this lawsuit. Na’i Aupuni then dodged the injunction by declaring that all the candidates who ran in the election are winners, and so the monthlong meeting to write a constitution went forward despite the injunction.

    One of the issues in the lawsuit are whether Na’i Aupuni is a government agency, in view of the fact that all the millions of dollars given to it came from OHA which is a government agency, and therefore the elections it holds violate the Supreme Court ruling in Rice. Another issue is whether the lawsuit is now moot (no longer relevant) because Na’i Aupuni has stopped doing any more work, or whether the lawsuit is not moot because Na’i Aupuni or a new agency like it could simply start up again to do a race-based election to ratify the constitution.

    Assuming the 3-judge panel rules to dismiss the lawsuit either because Na’i Aupuni was not a government agency or because the case is now moot, then the next step will be for the Department of Interior to issue its final rule to provide a process for a Hawaiian tribe to get federal recognition, and for the so-called “tribe” to hold an election to ratify the Na’i Aupuni constitution in such a way that the election satisfies the rule written by Department of Interior. The racists are rushing to get the whole thing done before January 20, 2017, when Obama will no longer be President and the Department of Interior will come under new management by a Republican President who will refuse to allow Hawaii to be ripped apart along racial lines.

        • Mahalo to Prof Conklin for providing links to some of the rest of the story. It is obviously true that the folks running Hawaii have a hook sunk deep into the O administration. A political hook that would preserve the status quo. The Indian Non Intercourse Act was triggered each time land was taken by settlers but this must not be permitted to rule land transactions least Hawaii unravel because there isn’t enough money in Hawaii to pay for land wrongly so taken. It would have to go up to the congress to get that kind of money. What the state could do to get itself out of the corner the Hawaiians (the ali’i trusts and OHA) painted itself into would be to return title to the public lands to the United States. Outside of the political hook, the US would not have the same self interest in the deal as the state has. There are other ways to solve the problems and Interior knows what they are. Jealousy over the native Hawaiians’ superior position in federal law on the part of the pake royalists led to this situation.

        • Thanks to Fred Trenchard (Mythman) for raising the issue of the Indian Non-Intercourse Act. Let me be clear: The Organic Act does not refer to sex between settlers and Indians, and the Indian Non-Intercourse Act does not prohibit that. *LOL

          For those readers who have no idea what the Indian Non-Intercourse Act is, and how it might apply to Hawaii in case there’s a federally recognized Hawaiian tribe, there’s a good explanation in pp. 39-45 of my 134-page testimony in opposition to the Department of Interior proposed rule that would empower the Department of Interior to grant federal recognition to such a tribe.

          The lawsuit heard on Friday by the 3-judge panel of the U.S. 9th Circuit Court of Appeals is an effort to stop the process whereby the phony Hawaiian tribe is being created. DOI and OHA are co-conspirators in ripping apart the State of Hawaii. DOI is writing a regulation tailor-made to dovetail with the process now underway in Hawaii. The tribal constitution was written, and a ratification vote will be held, in such a way that the whole process will meet the requirements in the DOI rule; and the DOI rule is being written and revised to provide exactly the requirements which the phony tribe is now in the process of working through.

          It’s not easy for two bureaucracies, one federal and one state, to work together from opposite ends of a problem to be able to assemble the machinery to run smoothly and make things work. Our main hope is that in this case they will be unable to coordinate efficiently.

          Here’s a mo’olelo — a tidbit of history which, in the tradition of Hawaiian storytelling, carries kaona providing an interesting way of understanding the present and future of the relationship between the Na’i Aupuni election and resulting Constitutional Convention and final ratification vote, on one hand, and the Department of Interior rulemaking process on the other hand.

          Quoting from that paragon of authoritative reliability, Wikipedia:
          “[The town named] Barog was settled in the early 20th century during the building of the narrow gauge Kalka-Shimla Railway. It is named after Colonel Barog, an engineer involved in building the railway track in 1903. Currently many residents have their long stays in their houses and flats in Barog. Mostly they are Sikhs from Punjab. Barog, the engineer, was responsible for designing a tunnel near the railway station. He commenced digging the tunnel from both sides of the mountain, which is quite common as it speeds up construction. However, he made mistakes in his calculation and while constructing the tunnel, it was found that the two ends of the tunnel did not meet.[1] Barog was fined an amount of 1 Rupee by the British government. Unable to withstand the humiliation, Barog committed suicide and was buried near the incomplete tunnel. The area came to be known as Barog after him.[2] Later it was constructed under Chief Engineer H.S. Harrington’s supervision, guided by a local sage, Bhalku,[3] from July 1900 to September 1903, at a cost of 840,000 rupees. This tunnel is the longest of the 103 operational tunnels on the route of the Shimla-Kalka Railway, which is 1143.61m long. Barog station is immediately after the tunnel. Barog tunnel is the straightest tunnel in the World.”

          Let’s have a contest to choose which name should be given to the Barog monument to be constructed at UH to commemorate the mismatch between Hawaii and DOI when they fail to connect before Obama fades into history on January 20, 2017 and is replaced by a Republican President who will issue an Executive Order to cancel the special rule now under construction. Shall we call it Danner? Or perhaps Dorton? Kia’aina? Apoliona? So many more come to mind. Perhaps an obelisk with all their names would be good — one with a horizontal rod on top for the birds to perch upon while delivering their blessings to the names inscribed below.

        • The Indian Non Intercourse Act (INIA) holds that only the federal government can take Indian land. No state law or local law is superior to it. The Akaka bill had language in it that seemed to protect the takings that took place through the alleged authority of state law pursuant to language in the HAA. Such language itself was unconstitutional pursuant to several clauses in the federal constitution – and everyone knows this to be an OBJECTIVE reality even if a federal court has not agreed it is so, yet. “Yet” cuts both ways. None of this has anything whatsoever to do with an election coming soon saturating the daily news.

      • Counsel of record is both a legal sycophant and plebe to the far right. That said, Judicial Watch would have been fat better served trying to dilute the voting rights of communities of color, as this fairly ridiculous law suit is going no where. Advantage, game, set Na’i Aupuni.

        Here is a question to the far right: what the heck do you think is going to happen to the hundreds of cases that could have gone to the US Supreme Court, but will not, because of your utter failure to take action on a nominee? Answer, a gigantic blow up in your face– as they will be passed back down to their respective circuit courts.

        • Boo, I would believe you want the 9th to decide the Akina v. Hawaii be moot, and I that the Court decide it is not moot. Most important, both of us do not know what and when the 9th will decide. I hold on to the most critical issue, and that is the election of Mr. Trump so he can nominate an Originalist to the U.S. Supreme Court from his 11 names made public. On the cases brought forward to the U.S. Supreme Court, the Court is on its normal schedule. The only challenges are the cases decided 4 to 4, if they are to be reheard or not. There will never be a gigantic blow up. Have faith in the Constitution.

        • Kuro, do you ever read anything that you don’t want to read? That is to say, an objective and intelligent person reads and looks at resources from all reliable sources–to do otherwise is to be plain partisan and an idealogical slave.

          Every single credible poll has Trump trailing, and in most polls the margin is now getting to the point of being an inflection point of concern for the R party. Let me explain, at a margin of 8-9 percent, the House comes into play of being lost. This is not me, and this is not from D pollsters, but rather very credible R posters.

          I have asked you for a single poll, a single one(which you either always avoid or cannot produce)-I can cite over two-dozen, some from R pollsters, that say otherwise. So, it’s all together telling, you are merely wishing, but moreover not speaking with an iota of a factual basis–which is a basic element of an intelligent discourse.

          According to a Washington Post poll, Trump has startlingly high negatives, being viewed unfavorably by 77 percent of women, 89 percent of Hispanics and 94 percent of African-Americans. It’s true that Clinton also has high negatives, but they aren’t in Trump’s league. Nobody’s are. As Greg Sergeant noted in The Washington Post, “there’s no real equivalence between the negative views of Donald Trump and Hillary Clinton. While Clinton certainly has problems in this regard, Trump fares far, far worse.”

          Trump is viewed negatively by every major demographic group except non-college educated white men (who view him favorably, 56-42). This means that even groups that have voted Republican in most post-1964 elections—white women, college-educated whites—are hostile to Trump. By contrast, Clinton is viewed favorably by many groups, including women overall, non-whites, and Hispanics. Her negatives, unlike Trump’s, are offset by groups that actually like her.

          Further boosting Clinton’s chances of a romp in November is the fact that pollsters may well be under-counting a key demographic that is strongly anti-Trump and pro-Clinton: Latinos. Because they have trouble canvassing Spanish-speaking households, pollsters tend to have trouble capturing the Latino vote. If this is true in this election as previously, then it’s likely that Clinton’s current lead is being underestimated by as much as 3 percent. Clinton was running about even with Bernie Sanders in the polls in California but ended up winning by 13 percent, thanks in large part to Latinos who went undetected by pollsters. Of course California is a special case, but Latinos are projected to rise to 17 percent of the electorate in 2016—and Trump couldn’t be doing more to mobilize them against him.

        • Boo, as I responded weeks ago, let’s have the discussion between Clinton/Sanders v. Trump a week after the National Conventions. All polls prior to both National Conventions have very little meaning. It’s most important prior to the Conventions that both Party’s candidate begin organizing their campaigns for the run to November. So, again, let’s wait till a week following the National Conventions. Mahalo.

        • As a point of reference, Trump is trailing, in the most recent polls, at the 12-13% range. Again, at or about 8%, is the insertion point for Rs to lose not just the race to the White House, but the entire congress.

        • Dave’s prediction: Just before the Dem. Convention liar Hillary will be indicted. The first round of voting will not bring enough votes for Bernie, so in will ride Biden on a White Horse(or should I say a White Donkey) to save the day for the Party. Biden is the perfect one to beat Trump, if anyone can.

        • Lots of predictions have been made about Trump in the last 6 months. All have been proven wrong. He won his side hands down after all talking heads said he would not even get enough delegates to pass the threshold, for instance. It appears based on the daily “smear Trump” media blitz the Dems are very much on the defensive and worried about the Donald.

        • Dad, I give you facts and data, you give, unsupported platitudes…..big difference.

        • I hold Prof Boo in high regard and so find it puzzling why he wishes to portary this mase as being right wing or left wing or any wing when it has to do only with getting the situation into synch with the law of the land. Now the implications of doing so might be political but that’s a different story. Or, is it an indication of that this has become a Dem Party objective instead of legalistic and that is why there is so much smoke being blown by the OHA/Kamehameha/royal pake side? The judges in the video linked to by Prof Conklin seem not at all impressed by the smoke being blown the the expensive OHA/KSBE lawyers. That this is not ripe, yet, is a testament to the royalists’ determination, as much as it is a testament to the wimps sitting on the federal bench. The native will prevail as soon as the perception of ripeness by the federal courts matches the native Hawaiian’s knowledge. (Prof Boo did say why he is rhetorical often, below, as I read after writing this).

        • Sir Myth answer this directly, is this, yes or no, funded by entirely R advocacy groups?? The answer you provide is the answer to the greater posit.

    • Tell me, and be specific, supported by real time data, on how the heck are the Rs going to win the White House. Your very own party leaders, and premier R consultants, behind the scenes have all but conceded the White House….so, illuminate both the masses and experts,on how this will happen????

      • If as you say Trump doesn’t have a chance, why are you so defensive Boo? You’ve got nothing to worry about.
        You protest too much, Brutus.

        • For the obvious reasons of rubbing your nose in it and to bring a tiny amount of veracity to this otherwise inane conversation….,

  • Well the facts remain that OHA did use government money for a race based election process, even trying to end run around what they knew was illegal by setting up a dummy non-profit for the appearance that they were not involved.
    The money was spent, so the court will simply rule that OHA was wrong and should not fund such enterprises in the future.
    Any future attempts will have to stand on their own merits or another suit can be brought.

    • I agree with an earlier post by DiverDave. The FBI primary will decide who is the Democrat nominee. Hillary will have to trade her mauve pantsuit for an orange one and Joe Biden will be the nominee. I wonder what will be Trump’s nickname for Biden! Yale will lose the debate and we’ll all say yay when Hillary goes to Yail, except that Obama will give her a pardon on January 19.

      • Actually, he could call Biden “Oreo”. He and Ted Kennedy back in the day had a favorite Bar that they went to a few times a week. Ted would lay down on his back on the floor and Biden would push a server down and get on top. They would call it an “Oreo Cookie”. Of course they were heavy tippers. They would have to be.

      • That sound vaguely familiar Nixon and Ford? The difference between Clinton and O is the difference between a Walmart store in the inner city and a walmart store out in the country, where a Waffle House franchise is the gathering place. Oh, BTW,k this is on the mainland, the real America, not here. The vibe is completely different. Fear, hate, crime, drunken bums, rudeness versus mellow, slower, friendly, cleaner. Waffle House, it’s easy to forget the inner city even exists. Who is going to vote for Clinton? Who is not? That’s a different kind of “poll”.

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