United States District Court, D. Hawaii
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Keli'i Akina, Kealii Makekau, Joseph Kent, Yoshimasa Sean
Mitsui, Pedro Kana'e Gapero, Melissa Leina'ala Moniz,
Plaintiffs: Chris Fedeli, Lauren M. Burke, Robert D. Popper,
LEAD ATTORNEYS, PRO HAC VICE, Judicial Watch, Inc.,
Washington, DC; H. Christopher Coates, LEAD ATTORNEY, PRO HAC
VICE, Law Office of H. Christopher Coates, Charleston, SC;
Michael A. Lilly, LEAD ATTORNEY, Ning Lilly & Jones,
Virgil E. Day, Samuel L. Kealoha, Jr., Josiah L. Hoohuli,
Patrick L. Kahawaiolaa, Melvin Hoomanawanui, Petitioners:
Walter R. Schoettle, Honolulu, HI.
State of Hawaii, Governor David Y. Ige, in his official
capacity, John D. Waihe'e, III, Chairman, Native Hawaiian
Roll Commission, in his official Capacity, Na'alehu
Anthony, Commissioners, Native Hawaiian Roll Commission, in
their official capacities, Lei Kihoi, Commissioners, Native
Hawaiian Roll Commission, in their official capacities, Robin
Danner, Commissioners, Native Hawaiian Roll Commission, in
their official capacities, Mahealani Wendt, Commissioners,
Native Hawaiian Roll Commission, in their official
capacities, Clyde W. Namu'o, Executive Director, Native
Hawaiian Roll Commission, in his official capacity,
Defendants: Donna H. Kalama, LEAD ATTORNEY, State of Hawaii,
Major Litigation Unit, Honolulu, HI; Girard D. Lau, Office of
the Attorney General-Hawaii, Honolulu, HI; Robert T.
Nakatsuji, Department of the Attorney General-State of
Hawaii, Honolulu, HI.
Robert K. Lindsey, Jr., Chairperson, Board of Trustees,
Office of Hawaiian Affairs, in his official capacity, Colette
Y. Machado, Trustees, Office of Hawaiian Affairs, in their
official capacities, Peter Apo, Trustees, Office of Hawaiian
Affairs, in their official capacities, Haunani Apoliona,
Trustees, Office of Hawaiian Affairs, in their official
capacities, Rowena M.N. Akana, Trustees, Office of Hawaiian
Affairs, in their official capacities, John D. Waihe'e,
IV, Trustees, Office of Hawaiian Affairs, in their official
capacities, Carmen Hulu Lindsey, Trustees, Office of Hawaiian
Affairs, in their official capacities, Dan Ahuna, Trustees,
Office of Hawaiian Affairs, in their official capacities,
Leina'ala Ahu Isa, Trustees, Office of Hawaiian Affairs,
in their official capacities, Kamanaopono Crabbe, Chief
Executive Officer, Office of Hawaiian Affairs, in his
official Capacity, Defendants: Eli Schlam, Ellen Oberwetter,
Kannon K. Shanmugam, LEAD ATTORNEYS, PRO HAC VICE, Williams &
Connolly LLP, Washington, DC; Robert G. Klein, LEAD ATTORNEY,
McCorriston Miller Mukai MacKinnon LLP, Honolulu, HI.
Akamai Foundation, Defendant: Nadine Y. Ando, LEAD ATTORNEY,
Sullivan Meheula Lee LLLP, Honolulu, HI; William Meheula,
LEAD ATTORNEY, Sullivan Lee Meheula, LLLP, Honolulu, HI.
Na'i Aupuni Foundation, Defendant: David J. Minkin,
Jessica M. Wan, Troy J.H. Andrade, LEAD ATTORNEYS,
McCorriston Miller Mukai MacKinnon, Honolulu, HI; Nadine Y.
Ando, LEAD ATTORNEY, Sullivan Meheula Lee LLLP, Honolulu, HI;
William Meheula, LEAD ATTORNEY, Sullivan Lee Meheula, LLLP,
United States Department of the Interior, Amicus: Thomas A.
Helper, LEAD ATTORNEY, Office of the United States Attorney,
Kingdom of Hawai'i, Interested Party: Lanny Alan Sinkin,
LEAD ATTORNEY, Hilo, HI.
DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION,
DOC. NO. 47
Michael Seabright, United States District Judge.
Nai Aupuni is conducting an election of Native
Hawaiian delegates to a proposed convention of Native
Hawaiians to discuss, and perhaps to organize, a "
Native Hawaiian governing entity." Delegate candidates
have been announced, and voting is to run from November 1,
2015 to November 30, 2015. Plaintiffs have filed a Motion
for Preliminary Injunction seeking, among other relief, to
halt this election.
voters and delegates in this election are based on a "
Roll" of " qualified Native
Hawaiians" as set forth in Act 195, 2011 Haw. Sess.
Laws, as amended (the " Native Hawaiian Roll" or
" Roll" ). A " qualified Native Hawaiian"
is defined as an individual, age eighteen or older, who
certifies that they (1) are " a descendant of the
aboriginal peoples who, prior to 1778, occupied and exercised
sovereignty in the Hawaiian islands, the area that now
constitutes the State of Hawaii, " Haw. Rev. Stat.
(" HRS" ) § 10H-3(a)(2)(A), and (2) have
" maintained a significant cultural, social, or civic
connection to the Native Hawaiian community and wishes to
participate in the organization of the Native Hawaiian
governing entity." HRS § 10H-3(a)(2)(B).
a registration process, the Native Hawaiian Roll Commission
(the " commission" ) asked or required prospective
registrants to the Roll to make the following three
o Declaration One. I affirm the unrelinquished sovereignty of
the Native Hawaiian people, and my intent to participate in
the process of self-governance.
o Declaration Two. I have a significant cultural, social or
civic connection to the Native Hawaiian community.
o Declaration Three. I am a Native Hawaiian: a lineal
descendant of the people who lived and exercised sovereignty
in the Hawaiian islands prior to 1778, or a person who is
eligible for the programs of the Hawaiian Homes Commission
Act, 1920, or a direct lineal descendant of that person.
Doc. No. 1, Compl. ¶ 42; Doc. No. 47-9, Pls.' Ex. A.
Separately, the Roll also includes as qualified Native
Hawaiians " all individuals already registered with the
State as verified Hawaiians or Native Hawaiians through the
office of Hawaiian affairs [(" OHA" )] as
demonstrated by the production of relevant [OHA]
records[.]" HRS § 10H-3(a)(4). Those on the Roll
through an OHA registry do not have to affirm Declarations
One or Two.
filed suit on August 13, 2015, alleging that these "
restrictions on registering for the Roll" violate the
U.S. Constitution and the Voting Rights Act of 1965, 52
U.S.C. § 10301. Doc. No. 1, Compl. ¶ 1. As to the
constitutional claims, they allege violations of (1) the
Fifteenth Amendment; (2) the Equal Protection and Due Process
clauses of the Fourteenth Amendment; and (3) the First
Amendment. They further allege that Nai Aupuni is acting
" under color of state law" for purposes of 42
U.S.C. § 1983, and is acting jointly with other state
actors. Id. ¶ ¶ 59, 68, 70,
72, 74. The Complaint seeks to enjoin Defendants " from
requiring prospective applicants for any voter roll to
confirm Declaration One, Declaration Two, or Declaration
Three, or to verify their ancestry." Id. at 32,
Prayer ¶ 2. The Complaint also seeks to enjoin "
the use of the Roll that has been developed using these
procedures, and the calling, holding, or certifying of any
election utilizing the Roll." Id. ¶ 3.
end, Plaintiffs have moved for a preliminary injunction,
seeking an Order preventing Defendants " from
undertaking certain voter registration activities and from
calling or holding racially-exclusive
elections for Native Hawaiians, as explained in
Plaintiffs' Complaint." Doc. No. 47, Pls.' Mot.
at 3. They seek to stop the election of delegates, and
thereby halt the proposed convention.
court heard Plaintiffs' Motion for Preliminary Injunction
on October 20, 2015, and fully considered all written and
oral argument, as well as the evidence properly submitted in
the record. The court issued an oral ruling on October 23,
2015, explaining much of the court's reasoning and
analysis. This written ruling provides further background and
explanation, but is substantively the same as the oral
ruling. Based on the following,
Plaintiffs' Motion is DENIED.
Act 195 and the Native Hawaiian Roll
6, 2011, then-Governor Neil Abercrombie signed into law Act
195, which is codified in substantial part in HRS Chapter
10H. Act 195 begins by declaring that " [t]he Native
Hawaiian people are hereby recognized as the only indigenous,
aboriginal, maoli people of Hawaii." HRS § 10H-1.
The purpose of Act 195 is to:
provide for and to implement the recognition of the Native
Hawaiian people by means and methods that will facilitate
their self-governance, including the establishment of, or the
amendment to, programs, entities, and other matters pursuant
to law that relate, or affect ownership, possession, or use
of lands by the Native Hawaiian people, and by further
promoting their culture, heritage, entitlements, health,
education, and welfare.
HRS § 10H-2.
establishes a five-member commission, which is responsible
for preparing and maintaining a roll of " qualified
Native Hawaiians." HRS § 10H-3(a)(1). As summarized
above, § 10H-3(a)(2) (as amended by Act 77, 2013 Haw.
Sess. Laws), defines a " qualified Native Hawaiian"
an individual whom the commission determines has satisfied
the following criteria and who makes a written statement
certifying that the individual:
(i) An individual who is a descendant of the aboriginal
peoples who, prior to 1778, occupied and exercised
sovereignty in the Hawaiian islands, the
area that now constitutes the State of Hawaii;
(ii) An individual who is one of the indigenous, native
people of Hawaii and who was eligible in 1921 for the
programs authorized by the Hawaiian Homes Commission Act,
1920, or a direct lineal descendant of that individual; or
(iii) An individual who meets the ancestry requirements of
Kamehameha Schools or of any Hawaiian registry program of the
(B) Has maintained a significant cultural, social, or civic
connection to the Native Hawaiian community and wishes to
participate in the organization of the Native Hawaiian
governing entity; and
(C) Is eighteen years of age or older[.]
HRS § 10H-3(a)(2). Further, the commission is
including in the roll of qualified Native Hawaiians all
individuals already registered with the State as verified
Hawaiians or Native Hawaiians through the [OHA] as
demonstrated by the production of relevant [OHA] records, and
extending to those individuals all rights and recognitions
conferred upon other members of the roll.
HRS § 10H-3(a)(4).
these provisions, persons who are included on the Roll
through § 10H-3(a)(4) as having " already
registered with the State" through OHA do not have to
certify that they have " maintained a significant
cultural, social, or civic connection to the Native Hawaiian
community, " nor that they " wish to participate
in the organization of the Native Hawaiian governing
entity" as set forth in § 10H-3(a)(2). And Nai
Aupuni's President, Dr. James Asam, attests that:
[Nai Aupuni] understood that OHA's Hawaiian Registry
process did not require attestation of the "
unrelinquished sovereignty of the Native Hawaiian
people", and " intent to participate in the process
of self-governance" (" Declaration One" ).
[Nai Aupuni] concluded, on its own, that having this
alternate registration process was favorable because it
provided Native Hawaiians who may take issue with Declaration
One with the opportunity to participate in the [Nai Aupuni]
Doc. No. 79-1, Asam Decl. ¶ 19; see also Doc.
No. 83-1, Kamanaopono Crabbe Decl. ¶ 11 (" [A]n OHA
Database registrant may be transferred to the Roll Commission
and included on the Roll without affirming the declarations
required under Act 195." ). Indeed, according to the
Complaint, many of these OHA-registrants were placed on the
Roll without their knowledge or consent. Doc. No. 1, Compl.
October 20, 2015 hearing, the parties stipulated that
approximately 62 percent of the Roll comes from an OHA
registry, and the other 38 percent come directly through the
Roll commission process. See Doc. No. 104, Tr. (Oct.
20, 2015) at 57-58. It follows that approximately 62 percent
of the Roll did not have to affirm Declarations One or Two.
That is, approximately 62 percent of the Roll did not have to
make an affirmation regarding sovereignty or significant
connection to the Native Hawaiian community.
Act 195, the Governor of Hawaii appointed the five members of
the commission selected " from nominations submitted by
qualified Native Hawaiians and qualified Native Hawaiian
membership organizations, " where " a qualified
Native Hawaiian membership organization includes an
organization that, on [July 6, 2011], has been in existence
for at least ten years, and whose purpose has been and is the
betterment of the conditions of the Native Hawaiian
people." HRS § 10H-3(b). The commission is funded
by OHA, Act 195 § 4, and is placed " within the
[OHA] for administrative purposes only." HRS §
commissioners are responsible for (1) " [p]reparing and
maintaining a roll of qualified Native Hawaiians; " (2)
" [c]ertifying that the individuals on the roll of
qualified Native Hawaiians meet the definition of qualified
Native Hawaiians; " and (3) " [r]eceiving and
maintaining documents that verify ancestry; cultural, social,
or civic connection to the Native Hawaiian community; and age
from individuals seeking to be included in the roll of
qualified Native Hawaiians." HRS § 10H-3(a).
commission is required to " publish notice of the
certification of the qualified Native Hawaiian roll, update
the roll as necessary, and publish notice of the updated roll
of qualified Native Hawaiians[.]" HRS § 10H-4(a). Under
The publication of the initial and updated rolls shall serve
as the basis for the eligibility of qualified Native
Hawaiians whose names are listed on the rolls to participate
in the organization of the Native Hawaiian governing entity.
HRS § 10H-4(b). Further,
The publication of the roll of qualified Native Hawaiians, as
provided in section 10H-4, is intended to facilitate the
under which qualified Native Hawaiians may independently
commence the organization of a convention of qualified Native
Hawaiians, established for the purpose of organizing
HRS § 10H-5.
commission " began accepting registrations for the Roll
in July of 2012." Doc. No. 80-1, Clyde Namuo Decl.
¶ 3. Registration " has been closed at times in the
past, but [at least as of September 30, 2015] it is presently
open." Id. " Registrations can be done
either online or by paper registration." Id.
Further, from time to time after Act 195 was amended in 2013
to require the commission to include OHA registrants in 2013,
Act 77, 2013 Haw. Sess. Laws, OHA has transmitted to the
commission updated " lists of individuals registered
through OHA's registries and verified by OHA as Hawaiian
or Native Hawaiian." Id. ¶ 6. The website
of the " Kanaiolowalu" project of the commission
lists 122, 785 registered members on the Roll. See
www.kanaiolowalu.org (last accessed Oct. 29, 2015).
OHA began transferring names of OHA registrants to the
commission, the commission issued and distributed a press
release on August 7, 2013 that, among other things, provided
members on OHA lists a telephone number to call if they
" [do] not wish to have their names transferred" to
the Roll. Doc. No. 80-1, Namuo Decl. ¶ 5. On September
20, 2013, OHA transmitted an initial list of registrants to
the commission that excluded approximately 36 persons who had
requested that their names be withheld from the transfer.
Id. ¶ 6.
approximately October 10, 2013, the commission posted
information on its website about removal from the Roll. It
included a removal request form that could, and still can, be
downloaded and sent to the commission. Id. ¶ 8.
At various times in October to December of 2013, the
commission also sent newsletters and emails to OHA
registrants that included information on how to remove
oneself from the Roll. Id. ¶ ¶ 9, 10. And
from March 24, 2014 to April 4, 2014, the commission made
available for public viewing (with binders in various
locations, and on its website) a " pre-certified"
list of individuals on the Roll. Id. ¶ 11. The
purpose was, in part, to allow individuals to remove
themselves if they so chose. Id. ¶ 12.
Similarly, " [o]n at least three separate occasions in
August, September, and October 2013, OHA provided public
notice of the Act 77 transfer to OHA Database
registrants[.]" Doc. No. 83-1, Crabbe Decl. ¶ 12.
They " were informed of their right to complete and
submit a short form . . . to opt-out of the Act 77
transfer." Id. ¶ 13. On August 14, 2013,
" OHA sent email notification to OHA Database
registrants regarding OHA's transfer of information to
the Roll Commission pursuant to Act 77, " id.
¶ 14, and that notification included information
regarding such an " opt-out form." Id.
OHA's chief executive, Dr. Crabbe, attests that this
email was sent to an email address on file for Plaintiff
Moniz. Id. When asked at the October 20, 2015
hearing about Plaintiff Gapero, Dr. Crabbe testified that he
had no specific knowledge regarding Gapero, but he "
[is] confident that [OHA] took the appropriate measures to
inform all those who were on the [OHA] databases[.]"
Doc. No. 104, Tr. (Oct. 20, 2015) at 22.
Nai Aupuni, the Akamai Foundation, and a Grant from
noted above, Nai Aupuni " is a Hawaii non-profit
corporation that supports efforts to achieve Native Hawaiian
self-determination." Doc. No. 79-1, Asam Decl. ¶ 6.
It was incorporated on December 23, 2014, and was intended to
be independent of OHA and the State of Hawaii. Id.;
Doc. No. 79-6, Nai Aupuni Ex. 4 (By-Laws) at 1. It " is
comprised of five directors who are Native Hawaiian, [and]
are active in the Native Hawaiian community[.]" Doc. No.
79-1, Asam Decl. ¶ 29. The current directors are James
Kuhio Asam, Pauline Nakoolani Namuo, Naomi Kealoha
Ballesteros, Geraldine Abbey Miyamoto, and Selena Lehua
Schuelke. Nai Aupuni was formed " to provide a process
for Native Hawaiians to further self-determination and
self-governance for Native Hawaiians." Id.
a policy of supporting Native Hawaiian self-governance. Doc.
No. 83-1, Crabbe Decl. ¶ 17. On October 16, 2014, the
OHA Board of Trustees " realign[ed] its budget" --
consisting of trust funds under § 5(f) of the Admissions
Act for its purpose of supporting the betterment of Native
Hawaiians -- to " provide funds to an independent entity
to formulate a democratic process through which Native
Hawaiians could consider organizing, for themselves, a
governing entity." Id. Nai Aupuni subsequently
" requested grant funds from the OHA so that [it] may
conduct its election of delegates, convention and
ratification vote process." Doc. No. 79-1, Asam Decl.
On April 27, 2015, at [Nai Aupuni's] request, " OHA,
the Akamai Foundation ('Akamai') and Nai Aupuni
entered into a Grant Agreement whereby OHA provided $2, 595,
000 of Native Hawaiian trust funds to Akamai as a grant for
the purpose of [Nai Aupuni] conducting an election of
delegates, convention and ratification vote[.]"
Id.; Doc. No. 79-2, Louis F. Perez III Decl.¶
3. " Akamai is a non-profit Internal Revenue Code (IRC)
Section 501(c)(3) organization incorporated in the State of
Hawaii[.]" Doc. No. 79-2, Perez Decl. ¶ 2. "
Akamai's mission and work is community development."
Grant Agreement contains the following autonomy clause:
Nai Aupuni's Autonomy. As set forth in
the separate Fiscal Sponsorship Agreement, OHA hereby agrees
that neither OHA nor [Akamai] will directly or indirectly
control or affect the decisions of [Nai Aupuni] in the
performance of the Scope of Services, and OHA agrees that
[Nai Aupuni] has no obligation to consult with OHA or
[Akamai] on its decisions regarding the performance of the
Scope of Services. [Nai Aupuni] hereby agrees that the
decisions of [Nai Aupuni] and its directors,
paid consultants, vendors, election monitors, contractors,
and attorneys regarding the performance of the Scope of
Services will not be directly or indirectly controlled or
affected by OHA.
Doc. No. 79-1, Asam Decl. ¶ 14. " Pursuant to the
Grant Agreement, OHA is prohibited from exercising direct or
indirect control over [Nai Aupuni]; provided only that [Nai
Aupuni's] use of the grant does not violate OHA's
fiduciary duty to allocate Native Hawaiian trust funds for
the betterment of Native Hawaiians." Doc. No. 83-1,
Crabbe Decl. ¶ 19. " Similarly, [Nai Aupuni] has no
obligation under the Grant Agreement to consult with
OHA." Id. ¶ 21. There is no evidence in
the record that OHA in fact controlled or directed Nai Aupuni
as to any aspect of the Grant Agreement.
referenced in the Grant Agreement clause, on April 27, 2015,
Nai Aupuni and Akamai entered into a separate Fiscal
Sponsorship Agreement. They did so " because [Nai
Aupuni] does not have a 501(c)(3) exemption." Doc. No.
79-1, Asam Decl. ¶ 15; Doc. No. 79-2, Perez Decl. ¶
4. And on May 8, 2015 " OHA, [Nai Aupuni] and Akamai
entered into a Letter Agreement that addressed the timing and