[10H-5] Native Hawaiian convention. The publication of the roll of qualified Native Hawaiians, as provided in section 10H‑4, is intended to facilitate the process under which qualified Native Hawaiians may independently commence the organization of a convention of qualified Native Hawaiians, established for the purpose of organizing themselves. [L 2011, c 195, pt of 2]

 

Case Notes

 

Act 195, Session Laws of Hawaii 2011, did not violate the equal protection clause. Act 195 facilitated self-governance and organization of native Hawaiians and established a commission to prepare and maintain a "roll" of qualified native Hawaiians. Even if this section contemplated or encouraged a convention, it simply called for a chance for certain native Hawaiians to independently organize themselves without involvement from the State. 141 F. Supp. 3d 1106 (2015).

In 42 U.S.C. 1983 action brought by native Hawaiians and Hawaii residents of non-Hawaiian ancestry challenging statutory restrictions on registering for a "roll" of qualified native Hawaiians as violative of their First Amendment and equal protection rights, the public interest would not be served by a preliminary injunction to halt nonprofit corporation's private election of native Hawaiian delegates to a convention of native Hawaiians to discuss, and possibly organize, native Hawaiian governing entity. Plaintiffs were not likely to be deprived of any constitutional rights, and granting injunction would potentially affect approximately 100,000 people on nonprofit corporation's voter list who may want to participate in the process of self-determination. 141 F. Supp. 3d 1106 (2015).

Where native Hawaiians and Hawaii residents of non-Hawaiian ancestry challenged the constitutionality of statutory restrictions on registering for a "roll" of qualified native Hawaiians and sought a preliminary injunction to halt nonprofit corporation's private election of native Hawaiian delegates to a convention of native Hawaiians to discuss, and possibly organize, a native Hawaiian governing entity, election was not a "public function" that would render nonprofit corporation a "state actor" subject to liability under 42 U.S.C. 1983. Nor did the election fall under the "joint action" test where state officials and private parties acted in concert to deprive constitutional rights. 141 F. Supp. 3d 1106 (2015).

While Act 195, Session Laws of Hawaii 2011, contemplated a convention of Hawaii's indigenous peoples to participate in the organization of a native Hawaiian governing entity, it did not mandate any election, nor did it impose, direct, or suggest any particular process. Under this section, the roll was intended to facilitate an independent process for native Hawaiians to organize themselves. At most, Act 195 facilitated private self-determination, not governmental acts or organization. 141 F. Supp. 3d 1106 (2015).

While plaintiffs claimed that their inclusion on a roll of native Hawaiians through the Office of Hawaiian Affairs (OHA) registry violated their First Amendment right against compelled speech or right not to register to vote and sought preliminary injunctions to halt nonprofit corporation's private election of native Hawaiian delegates to convention of native Hawaiians to discuss, and possibly organize, native Hawaiian governing entity, OHA did not require affirmations of sovereignty or civic connection to native Hawaiian community. Thus, being on the roll did not compel statement as to sovereignty, and plaintiffs could have removed their names from the roll. 141 F. Supp. 3d 1106 (2015).

 

 

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