by Andrew Walden

In Federal Court September 15, Office of Hawaiian Affairs (OHA) contractor Na'i Aupuni--which is using the State of Hawaii's Kanaiolowalu Roll to organize an 'Aha election--filed its response to the lawsuit seeking to shut it down, Akina vs Hawaii. 

In their brief, Na'i Aupuni's lawyers claim again and again Na'i Aupuni is not "a state actor" and therefore immune from the US Supreme Court's Rice v Cayetano decision which prohibits the State of Hawaii from organizing racially exclusive elections such as the 'Aha election.  But rather than arguing that Na'i Aupuni's 'Aha is legal because it is a private, nonprofit organization, the lawyers argue that Na'i Aupuni, OHA, and the Native Hawaiian Roll Commission (NHRC) are authorized by the federal government:  

"...the federal government has properly exercised its plenary power by adopting the Admission Act, over 150 Congressional acts providing assistance to Native Hawaiians, including the Hawaiian Homelands Act, Native Hawaiian Education Act – 20 USC § 7512 and the Native Hawaiian Healthcare Act, 42 U.S.C. § 11701, the Apology Resolution, and Department of Interior’s current process to promulgate an administrative rule to facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community – 79 FR 355296-02. These federal laws have authorized the State to assist Native Hawaiians in their self-determination efforts.  Thus, the Roll’s development of a Native Hawaiian registry to assist Native Hawaiian self-determination, and OHA’s grant of public land trust funds to fund Na‘i Aupuni’s election process do not violate constitutional or federal safeguards...." (Para 59)

"Na'i Aupuni states that OHA’s intentions are consistent with the federal government’s authorization of the State to assist Native Hawaiians in their self-determination efforts." (Para 62)

"Plaintiffs have not sustained their burden of establishing the requisite public interest in its position to be entitled to injunctive relief as demonstrated by the State of Hawaii’s passage Act 195, the fact that the Roll certified over 95,000 Native Hawaiians in July 2015, and that the Department of the Interior is currently moving forward with rule-making to support Native Hawaiian self-determination." (Para 5 on page 34)

In other words: It is legal for State of Hawaii agencies such as OHA and NHRC to sponsor the Na'i Aupuni elections -- but only because Na'i Aupuni, OHA and the NHRC are organizing for federal recognition.

The State of Hawaii has an obligation to act for "the betterment of Native Hawaiians," according to the Admission Act.  To amend the Admission Act and transfer this responsibility to the federal government via a fake Hawaiian Indian tribe requires the agreement of both the state legislature and the US Congress. 

Na'i Aupuni is effectively arguing that the Hawaii Legislature agreed to transfer the State's obligation to act for "the betterment of Native Hawaiians" to the Tribe by passing Act 195.  They are also arguing that the US Congress--which protected Hawaiians from the Akaka Bill for years and years--has already exercised its "plenary power" and authorized the creation of a fake Hawaiian Indian tribe by passing "over 150 Congressional acts providing assistance to Native Hawaiians." 

This is also the Obama Administration's justification for bypassing Congress and administratively recognizing a fake Hawaiian Indian tribe. 

If a Federal Judge were to uphold Na'i Aupuni's tortured interpretation of the legislative history, the path would be cleared for the Obama Administration to act.

The 1996 Native Hawaiian Convention was de-funded by OHA when delegates failed to go along with "federal recognition".

Does anybody really believe the 'Aha will be open to any other result?

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FULL TEXT: Na'i Aupuni response

Related: Supreme Court ruling shields Hawaiian Homelands and ceded lands revenue