Aloha, justices.

Photographer: Justin Sullivan/Getty Images

Sun and Sand, But No Sovereignty

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

Can Native Hawaiians form a government of their own to negotiate with the U.S. government like an Indian tribe? The issue is still before the lower courts, but the U.S. Supreme Court dropped a big hint Wednesday that its eventual answer may be no. The justices voted, 5-4, to continue an injunction that blocks the counting of ballots for delegates to a convention limited to Native Hawaiians. The U.S. Court of Appeals for the 9th Circuit could allow the counting to go forward after it rules -- but the issue will then go right back to the Supreme Court.

The backstory is fascinating, as are the constitutional issues raised by the case. It all started when Hawaii came under Western domination. Its government wasn’t treated the way Indian tribes were, with some recognition of group sovereignty. Consequently, unlike American Indian tribes, which under U.S. law are quasi-sovereign entities, there is no government authorized to speak on behalf of Native Hawaiians.

The frozen election is part of an effort to remedy that gap. Organized under the auspices of Na‘i Aupuni, an independent volunteer entity, the election proposes to choose 40 members of an ‘Aha, a convention that is a sort of Hawaiian answer to the Afghan Loya Jirga that shaped that country’s constitution. The ‘Aha would propose a constitution for a government to represent Native Hawaiians in negotiations with the federal government.

All this would be outside the reach of a constitutional challenge in the federal courts if the election were an entirely private affair, as Na‘i Aupuni maintains. What makes the court battle relevant is that there is some government role in the background. The Office of Hawaiian Affairs, a branch of the Hawaii state government, provided funding for the election via a sponsor, as Na‘i Aupuni’s website acknowledges.

And eligibility for the election is determined according to records compiled by the state’s Roll Commission, created by Hawaii Act 195 to produce a list of all descendants of Hawaii’s original people.

If a court finds that the OHA’s role in the elections amounts to state action, then the U.S. Constitution applies to the election. And the federal constitutional issues are pressing.

The 15th Amendment prohibits voter eligibility based on race. That principle doesn’t apply to elections held within Native American tribes, because they’re considered separate sovereigns.

In a 2000 case called Rice v. Cayetano, the U.S. Supreme Court held that the 15th Amendment prohibited Hawaii from limiting voting for the leadership of the OHA to Native Hawaiians on the commission’s rolls. The opinion, written by Justice Anthony Kennedy, said Native Hawaiians couldn’t be considered to be a tribe but, even if they were, the state of Hawaii couldn’t run an election limited by blood origin.

Justice Stephen Breyer wrote a concurrence, joined by Justice David Souter, that said the OHA couldn’t be analogized to a tribal trust. Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, thought that there was no unconstitutional invidious discrimination, because the goal was to enable native peoples to be compensated for past wrongs.

Na‘i Aupuni designed its election process to get around the Rice precedent. Unlike the OHA, which is undoubtedly a state entity, the ‘Aha will be a nonstate actor, ordinarily exempt from the constitutional prohibition on discrimination. If, by analogy, a national Jewish organization wanted to elect leaders and allow only Jews to participate in the voting, there would be nothing unconstitutional about it, because the constitutional ban on race-based discrimination applies only to government entities.

This nonstate status should also satisfy Breyer’s worry about the OHA, because the government created by the ‘Aha won’t be a state or federal government entity either.

Practically, Na‘i Aupuni made itself legally vulnerable by the appearance of a connection to the OHA through the indirect funding. The organization says that it remains completely independent of the OHA, because the OHA doesn’t control it. But control may not be the relevant legal test for the presence of state action.

Politically, there may be no better opportunity for Native Hawaiians to assert some sovereignty. Barack Obama is not only more sympathetic to indigenous rights than previous presidents, but also grew up and went to school in Hawaii, so he understands the issues clearly.

Yet when the Supreme Court is asked to review the decision that will eventually be reached by the 9th Circuit, the justices may well rule that the Na‘i Aupuni’s election is unconstitutional.

Logically, Native Hawaiians should be treated the same as other first peoples. The constitutional principle of avoiding race in elections, however, is a serious one, and the OHA’s financial involvement isn’t trivial. The best outcome would’ve been for the election to have been completely disconnected from the state. Because that didn’t happen, Justice Kennedy will once again be in control -- and it’s fairly clear how he’s likely to vote. Native Hawaiians may have to wait for another chance.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net