Here is the opinion in Akina v. State of Hawai’i.
These appeals concern recent efforts by a group of Native Hawaiians to establish their own government. The plaintiffs are Hawaii residents who challenge that process. They appeal the district court’s order denying their request for a preliminary injunction to stop activities related to the drafting and ratification of self-governance documents. Separately, another group of Hawaii residents appeals the district court’s denial of their motion to intervene in the plaintiffs’ lawsuit. For the reasons that follow, we dismiss the plaintiffs’ appeal of the preliminary injunction order as moot, and we affirm the district court’s denial of the motion to intervene.
Documents and orders filed in the District court posted here.
Petitioner’s emergency application here.
Link to SCOTUS docket proceedings here.
Yesterday, the U.S. Supreme Court voted 5-4 to approve Justice Kennedy’s preliminary injunction issued last Friday. We will post further filings when they are made available.
Here are the materials in Akina v. State of Hawai’i (D. Haw.):
47-1 Motion for PI
80 State Response
83 OHA Response
93 US Amicus Brief
114 DCT Order
Act 195 is a unique law. It is both symbolic and remarkable. It reaffirms a delegation of authority in the Admissions Act from the United States to the State of Hawaii to address conditions of Hawaii’s indigenous people. It declares that the Native Hawaiian people are Hawaii’s only “indigenous, aboriginal, maoli people.” It is meant—in limited fashion—to facilitate a possible mechanism of independent self-determination and self-governance of Hawaii’s indigenous people. It facilitates—simply by creating a Roll of qualified Native Hawaiians—a possible process for the Native Hawaiian community to determine for themselves (absent any other involvement by the State of Hawaii) what collective action, if any, might be sought by that community.
Undoubtedly there is some “state action.” But, based on the information presented at this preliminary injunction stage, Nai Aupuni’s planned election of delegates is not; Nai Aupuni’s determination of who may participate is not; the planned convention is not. And the state is not involved in whether this process is or will be “fair and inclusive” and “reflect the will of the Native Hawaiian community” for purposes of the Department of the Interior’s NPRM.
The election will not result in any state officials, law, or change in state government. The election and convention might be a step towards self-governance by Native Hawaiians, or it might accomplish nothing of substance. Even if, however, a self-proclaimed Native Hawaiian governing entity is created with a governing document or a constitution, the result would most certainly not be a state entity.
Plaintiffs have not met their burden of demonstrating that excluding them from this particular private election is unconstitutional, or will otherwise violate federal law. And that is the only question now before this court.
Plaintiffs’ Motion for Preliminary Injunction is DENIED.