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Dept of Interior amicus Hawaii race-based election 00322

Dept of Interior amicus Hawaii race-based election 00322

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Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
1158
FLORENCE NAKAKUNI (2286)
United States Attorney
District Hawaii
THOMAS HELPER (5676)
Assistant U.S. Attorney
Room 6-100, PJKK Federal Building
300 Ala Moana Boulevard
Honolulu, 96850
Telephone: (808) 541-2850
Facsimile: (808) 541-3752
Email: Tom.Helper@usdoj.gov
JOHN CRUDEN
Assistant Attorney General
SAM HIRSCH JUSTIN SMITH
MATTHEW OAKES
Environment Natural Resources Division
United States Department Justice
P.O. Box 7415
Washington, D.C. 20044
Telephone: (202) 514-2686
HILARY TOMPKINS
Solicitor
JODY CUMMINGS
SCOTT KEEP
BARBARA COEN
DANIEL LEWERENZ
Office the Solicitor
United States Department the Interior
1849 Street, N.W.
Washington, D.C. 20240
Telephone: (202) 208-4423
Attorneys for Amicus Curiae
THE UNITED STATES DEPARTMENT THE INTERIOR
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
1159 THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT HAWAII
KELI AKINA, al.,
Plaintiffs,
THE STATE HAWAII, al.,
Defendants.
CIVIL NO. 15-00322 JMS-BMK
BRIEF FOR THE UNITED STATES
DEPARTMENT THE
INTERIOR AMICUS CURIAE
SUPPORTING DEFENDANTS;
CERTIFICATE COMPLIANCE;
EXHIBIT (NOTICE PROPOSED
RULEMAKING); CERTIFICATE
SERVICE
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
1160
TABLE CONTENTS
TABLE AUTHORITIES .....................................................................
INTEREST THE UNITED STATES...................................................
INTRODUCTION ....................................................................................
BACKGROUND .......................................................................................
The 2014 Advance Notice Proposed Rulemaking ............
The 2015 Notice Proposed Rulemaking ...........................
DISCUSSION ...........................................................................................
Congress and the courts have long recognized
Native communities inherent powers determine
their membership, organize their governments,
ratify constitutions, and conduct elections. .........................
Consistent with Federal law, tribes traditionally have
excluded non-Natives from both membership and
voting, practice that Federal courts uniformly have
upheld. ..................................................................................
Excluding non-Natives from tribal elections
also routine, and lawful, tribal elections conducted the Secretary the Interior. ...........................................
Federal law provides basis for treating the
Native Hawaiian community differently from any
tribe the continental United States. .................................
CONCLUSION .........................................................................................
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
1161
TABLE AUTHORITIES
Federal Cases
Alto Black,
738 F.3d 1111 (9th Cir. 2013) ..................................................................
Alvarado Table Mountain Rancheria,
509 F.3d 1008 (9th Cir. 2007) ................................................................
Chamber Commerce the U.S. OSHA,
636 F.2d 464 (D.C. Cir. 1980) ..................................................................
Cheyenne River Sioux Tribe Andrus,
566 F.2d 1085 (8th Cir. 1977) .................................................................
Cruz Ysleta Del Sur Tribal Council,
842 Supp. 934 (W.D. Tex. 1993) ........................................................
EEOC Peabody Western Coal Co.,
773 F.3d 977 (9th Cir. 2014)....................................................................
Gardner Ute Tribal Court Chief Judge, App 927 (10th Cir. 2002) ....................................................... 13-14
Groundhog Keeler,
442 F.2d 674 (10th Cir. 1971) ..................................................................
Kahawaiolaa Norton,
386 F.3d 1271 (9th Cir. 2004) ............................................................
Michigan Bay Mills Indian Cmty.,
134 Ct. 2024 (2014) ............................................................................
Morton Mancari,
417 U.S. 535 (1974) ..................................................................... 10, 18,
Naliielua State Hawaii,
795 Supp. 1009 (D. Haw. 1990), aff 940 F.2d 1535 (9th Cir. 1991)
.................................................................................................................
Plains Commerce Bank Long Family Land Cattle Co.,
554 U.S. 316 (2008) ................................................................................
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
1162
Randall Yakima Nation Tribal Court,
841 F.2d 897 (9th Cir. 1988) ...................................................................
Rice Cayetano,
528 U.S. 495 (2000) ................................................................... 13, 20,
Rice Cayetano,
146 F.3d 1075 (9th Cir. 1998), vacated, 528 U.S. 495 (2000) .............
Santa Clara Pueblo Martinez,
436 U.S. (1978) ........................................................................ 11-12,
St. Germain U.S. Dep the Interior,
No. C13-945RAJ, 2015 2406758 (W.D. Wash. May 20, 2015) .......
Talton Mayes,
163 U.S. 376 (1896) ................................................................................
United States Antelope,
430 U.S. 641 (1977) ................................................................................
United States Jicarilla Apache Nation,
131 Ct. 2313 (2011) ..............................................................................
United States John,
437 U.S. 634 (1978) ...............................................................................
United States Lara,
541 U.S. 193 (2004) ......................................................................... 10,
United States Sandoval,
231 U.S. (1913) ...................................................................................
United States Wheeler,
435 U.S. 313 (1978) .................................................................................
Washington Yakima Indian Nation,
439 U.S. 463 (1979) ................................................................................
Wounded Head Tribal Council Oglala Sioux Tribe,
507 F.2d 1079 (8th Cir. 1975) ..................................................................
Yellow Bird Oglala Sioux Tribe,
380 Supp. 438 (D.S.D. 1974) .............................................................
iii
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
1163
State Cases
Ahuna Department Hawaii Home Lands, Haw. 327 (1982) .......................................................................... 20,
Constitution
U.S. Const. amend. XV, ..........................................................................
Federal Statutes
Administrative Procedure Act, U.S.C. 553 ..............................................
Apology Resolution, Pub. No. 103-150, 107 Stat. 1510 (1993) .................
Hawaii Admission Act, Pub. No. 86-3, Stat. (1959) ........................
Hawaiian Homes Commission Act, Stat. 108 (1921) ..............................
Hawaiian Homelands Homeownership Act 2000, Pub. No. 106-569,
114 Stat. 2968 (2000) ............................................................................. 10,
Indian Child Welfare Act, U.S.C. 1903(3) ............................................
Indian Civil Rights Act, U.S.C. 1301-1304 .......................................... U.S.C. 1302(a) .................................................................................... U.S.C. 1302(a)(1) ................................................................................ U.S.C. 1302(a)(8) ...............................................................................
Indian Reorganization Act, U.S.C. 476 ................................................................................ 12, 13, U.S.C. 476(h)(1)..................................................................................
Indian Self-Determination and Education Assistance Act, U.S.C.
450b(d) ......................................................................................................
Menominee Restoration Act, U.S.C. 903b ..................................... 12,
Native American Housing Assistance and Self-Determination, U.S.C.
4103(10) .....................................................................................................
Native American Programs Act 1975, U.S.C. 2991-2992 ............................................................................... U.S.C. 2991b-1 ................................................................................... U.S.C. 2991b-1(a)(1)(A) .....................................................................
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
1164
Native Hawaiian Education Act, U.S.C. 7511-7517 ................................................................................ U.S.C. 7512(12) .................................................................................. U.S.C. 7512(12)(B) ............................................................................. U.S.C. 7512(12)(E) .............................................................................
Native Hawaiian Health Care Improvement Act, U.S.C. 11701-11714 .............................................................................. U.S.C. 11701(16) ................................................................................ U.S.C. 11701(17) ............................................................................ 10, U.S.C. 11709(a)(2) ............................................................................. U.S.C. 11711(7)(A)(ii) .........................................................................
Oklahoma Indian Welfare Act, U.S.C. 503 ................................ 12, 13,
Voting Rights Act 1965, U.S.C. 10301-10314 .......................................................................... U.S.C. 10301(a) ................................................................................. U.S.C. 677e ...................................................................................... 12, U.S.C. 1801(a)(1) ................................................................................... U.S.C. 3103(9) .......................................................................................
Code Federal Regulations C.F.R. 81.1(k) (2014) ............................................................................ C.F.R. 81.6(a)(1) (2014) ....................................................................... C.F.R. 81.6(a)(2) (2014) ....................................................................... C.F.R. 81.12 (2014) ...............................................................................
Federal Register Fed. Reg. 35,296 (June 20, 2014) ........................................................... Fed. Reg. 61,021 (Oct. 2014) ............................................................... Fed. Reg. 59,113 (Oct. 2015) ................................................... 1-9, 19,
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
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Legislative
Constitutional Rights the American Indian: Hearings 961-968 and
S.J. Res. Before the Subcomm. Constitutional Rights the Comm. the Judiciary, 89th Cong. (1965) .............................................................
H.R. Rep. No. 66-839 (1920) ....................................................................... 961, 89th Cong. (1965) ............................................................................
Subcomm. Constitutional Rights the Comm. the Judiciary, 89th
Cong., Constitutional Rights the American Indian: Summary Rep.
Hearings and Investigations Pursuant Res. 194 (Comm. Print 1966)
......................................................................................................................
Other
Judge William Canby, Jr., American Indian Law (6th ed. 2015) ...........
Cohen Handbook Federal Indian Law (2012 ed.) .................................
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
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BRIEF FOR THE UNITED STATES DEPARTMENT THE
INTERIOR AMICUS CURIAE SUPPORTING DEFENDANTS
This brief submitted response this Court invitation (Doc. No.
89).
INTEREST THE UNITED STATES
The United States has special responsibility for the welfare Native
peoples throughout our Nation, including Native Hawaiians. Pursuant
that responsibility, Congress has enacted more than 150 statutes benefit
Native Hawaiians. Federal programs, services, and benefits specifically for
Native Hawaiians run the gamut from education (20 U.S.C. 7511-7517)
economic assistance (42 U.S.C. 2991-2992) health care (id. 1170111714).
The United States Department the Interior Department
recently published Notice Proposed Rulemaking NPRM titled
Procedures for Reestablishing Formal Government-to-Government
Relationship with the Native Hawaiian Community, Fed. Reg. 59113
(Oct. 2015) [attached Ex. A]. Because the public-comment period for
the NPRM still underway, the Department cannot speak with finality
about the issues addressed the NPRM. See U.S.C. 553; Chamber
Commerce U.S. OSHA, 636 F.2d 464, 470 (D.C. Cir. 1980). Until the
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
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Department has considered all timely public comments the NPRM, the
Department cannot state whether will promulgate final rule, what the
precise contents any such rule might be.
INTRODUCTION
Defendant Nai Aupuni, nonprofit corporation, planning
election next month delegates Aha, convention charged with
considering paths for Native Hawaiian self-determination and potentially
drafting constitution for Native Hawaiian government. Voting this
election will limited Native Hawaiians. Plaintiffs seek preliminarily
enjoin the election, primarily the ground that excluding non-Natives
violates the Federal Constitution. See Doc. No. 47, Mot. for Prelim. Inj.
While this case concerns the reorganization Native Hawaiian
government, starting with the election constitutional-convention
delegates, the Department NPRM focuses process that would
commence only Native Hawaiian government reorganized and then
seeks formal government-to-government relationship with the United
States. The NPRM itself, and the criteria for entering into such
relationship that proposes for public comment, are not issue here and
have only limited relevance the issues presented plaintiffs motion.
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
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But the premises underlying the NPRM are relevant here. explained
below, accordance with Federal law, tribes the continental United
States routinely limit voting tribal elections, including constitutional
referenda, members, while excluding non-Natives. There
principled basis for treating the Native Hawaiian community differently.
BACKGROUND
The 2014 Advance Notice Proposed Rulemaking
The Native Hawaiian community has one the largest indigenous
populations the United States. But unlike more than 500 federally
recognized Native communities the continent, Native Hawaiians lack
both organized government and formal government-to-government
relationship with the United States. response requests from the
Native Hawaiian community, well the Ninth Circuit suggestion that
the Department appl[y] its expertise determine whether native
Hawaiians, some native Hawaiian groups, could acknowledged
government-to-government basis, Kahawaiolaa Norton, 386 F.3d 1271,
1283 (9th Cir. 2004), the Department published Advance Notice
Proposed Rulemaking. Fed. Reg. 35296, 35296-303 (June 20, 2014).
The ANPRM solicited public comment regarding whether the Department
should facilitate (1) reorganization Native Hawaiian government and
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
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(2) reestablishment formal government-to-government relationship
with the Native Hawaiian community. See id. 35297, 35302-03.
After applying its expertise Native American affairs evaluate
more than 5,000 comments, the Department determined that would not
propose rule presuming reorganize Native Hawaiian government
prescribing the form structure that government; the Native Hawaiian
community itself should determine whether and how reorganize
government. The Department would, however, propose rule creating
process that the Secretary the Interior would use determine whether
reestablish formal government-to-government relationship the Native
Hawaiian community forms government that then seeks such
relationship with the United States.
The 2015 Notice Proposed Rulemaking
The NPRM proposes administrative procedure, well criteria,
for determining whether reestablish formal government-togovernment relationship between the United States and the Native
Hawaiian community. 50.1.1 The proposed rule explains that formal
This brief cites the NPRM preamble, found Fed. Reg. 59113-28,
NPRM [page number]. The proposed rule the portion the NPRM
that, finalized, would codified Title the Code Federal
Regulations found Fed. Reg. 59128-32 and cited here
[section number].
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
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government-to-government relationship would allow the United States
more effectively implement and administer the special political and trust
relationship that Congress has already established with the Native
Hawaiian community enacting more than 150 Federal statutes over the
last century. 50.1(a); see 50.1(b) (listing Acts Congress
creating Federal programs, services, and benefits specifically for Native
Hawaiians); see also NPRM 59114-18 (providing historical overview).
The Department proposed rule contemplates multistep process for Native Hawaiian government request government-to-government
relationship with the United States, chooses so. First, the Native
Hawaiian community would draft constitution other governing
document. 50.11; see 50.3, 50.10(a), (c), 50.13, 50.16(b), (d)-(f).
The proposed rule places few conditions the drafting governing
document that might presented the Department the process
reestablishing government-to-government relationship, merely stating
that the governing document should based meaningful input from
representative segments the Native Hawaiian community and reflect[]
the will [that] community. 50.11. The Native Hawaiian
community would make the proposed constitution text available Native
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
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Hawaiians and announce upcoming ratification vote. 50.14(b)(1)(2).
The community would then vote the constitution ratification
referendum open adult Native Hawaiian citizens (regardless
residency) but not persons lacking Native Hawaiian descent.
50.10(b), (d), 50.12, 50.14, 50.16(c), (e); see also 50.16(g)-(h)
(requiring specific evidence broad-based community support); NPRM
59124-25. Consistent with Federal statutes and caselaw, the proposed
rule definition Native Hawaiian restricted U.S. citizens who
descend from the aboriginal people who occupied and exercised sovereignty Hawaii prior 1778, when the first Europeans arrived. 50.4; see
NPRM 59124 (citing Federal statutes using the same definition); NPRM
59119 (explaining the definition roots Supreme Court caselaw). The
community could but not required use roll certified state
commission such the Native Hawaiian Roll Commission basis for
determining who may participate the referendum, the community
conforms the roll certain requirements the proposed rule.
50.12(b); see 50.14(b)(5)(iii), (c); see also NPRM 59121. the constitution approved, the community would hold elections fill the offices establishes. 50.10(e), 50.15, 50.16(f). The newly
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
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installed governing body could enact resolution seeking formal
government-to-government relationship with the United States.
50.10(f). Then the appropriate officer the new government could
prepare, certify, and submit the Secretary the Interior request
reestablish that relationship. 50.2, 50.10(g), 50.16(a), 50.20.
The public could comment the Native Hawaiian government
request, the Native Hawaiian government could respond comments, and
the Secretary could seek additional information needed. 50.30,
50.31, 50.40. Applying specific criteria set forth the proposed rule, the
Secretary would decide whether grant deny the request. 50.16,
50.40, 50.41. the Secretary grants the request, Federal Register notice
would trigger the start new, formal government-to-government
relationship. 50.42, 50.43. The Native Hawaiian community
government-to-government relationship with the United States would then the same under the U.S. Constitution and Federal law that any
federally recognized tribe the continental United States, and the Native
Hawaiian government would recognized having the same inherent
sovereign governmental authorities, subject Congress plenary
authority. 50.44(a)-(b); see also 50.44(c)-(g).
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
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Significantly, although the proposed rule envisions that Native
Hawaiians may choose draft governing document for Native
Hawaiian government (perhaps through constitutional convention) and
then ratify that document, those steps would taken the Native
Hawaiian community without Federal involvement. See NPRM 59123.
Native Hawaiian government reorganizes, that government can decide
whether not seek formal relationship with the United States. See id.
The Federal Government role would limited determining, under
criteria promulgated through the current notice-and-comment rulemaking,
whether reestablish formal government-to-government relationship receives request from reorganized Native Hawaiian government. See
id.
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
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DISCUSSION
The NPRM rooted the congressional enactments for Native
Hawaiians over the last century and draws from the wellspring authority
related Congress long history with Indians and tribal selfdetermination. That authority relevant here for four reasons; together,
they demonstrate that preliminary injunction should issue.
First, Congress has exercised its broad plenary authority recognize
and implement special political and trust relationships with Native
American communities; promote their self-determination and selfgovernance; and safeguard their inherent powers determine their
membership, reorganize their governments, ratify constitutions, and conduct elections. Second, consistent with that body Federal law,
tribes traditionally have not included non-Natives either membership
voting, practice that Federal courts uniformly have upheld. Third, nonNatives are properly excluded from tribal elections, whether conducted
the tribe itself the Secretary the Interior, because the exclusion
rationally designed further Indian self-government. Fourth, with regard these points, Federal law provides reason treat the Native Hawaiian
community differently from any tribe the continental United States.
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
1175
Congress and the courts have long recognized Native
communities inherent powers determine their
membership, organize their governments, ratify
constitutions, and conduct elections.
The powers Indian tribes are, general, inherent powers
limited sovereignty which has never been extinguished. United States
Wheeler, 435 U.S. 313, 322 (1978) (citation and emphasis omitted). That
sovereignty, however, subject Congress exceptionally broad plenary
power regulate and modify the status tribes. See Michigan Bay
Mills Indian Cmty., 134 Ct. 2024, 2030 (2014); United States Lara,
541 U.S. 193, 200 (2004); Morton Mancari, 417 U.S. 535, 551-52 (1974);
JUDGE WILLIAM CANBY, JR., AMERICAN INDIAN LAW (6th ed. 2015). the
Supreme Court recently reaffirmed, fundamental commitment Indian
law judicial respect for Congress primary role defining the contours tribal sovereignty. Bay Mills, 134 Ct. 2039.
Since the beginning our Republic, Congress has exercised its
plenary authority recognize and implement special political and trust
relationships with hundreds Native communities. See United States
Jicarilla Apache Nation, 131 Ct. 2313, 2323-24 (2011). Among those
the Native Hawaiian community. See, e.g., U.S.C. 11701(17); U.S.C.
7512(12); Pub. No. 106-569, 114 Stat. 2968-69 (2000).
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
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Especially the last years, Congress has used its plenary authority promote tribal self-determination and self-governance. See, e.g.,
U.S.C. 7512(12)(E) (reaffirming that the aboriginal, indigenous people
the United States have continuing right autonomy their internal
affairs; and ongoing right self-determination and self-governance
that has never been extinguished Likewise, the Supreme Court has held
that tribes are distinct, independent political communities, retaining their
original natural rights matters local self-government, with the power regulate their internal and social relations, make their own
substantive law internal matters, and enforce that law their own
forums. Santa Clara Pueblo Martinez, 436 U.S. 49, 55-56 (1978)
(citations omitted).
Congress has accordingly shown great deference, scores statutes, tribes definitions their own membership. See, e.g., U.S.C.
450b(d), 1801(a)(1), 1903(3), 3103(9), 4103(10). The Supreme Court has
been similarly deferential: tribe right define its own membership for
tribal purposes has long been recognized central its existence
independent political community. Santa Clara Pueblo, 436 U.S.
n.32; see also Alto Black, 738 F.3d 1111, 1115 (9th Cir. 2013) view
the importance tribal membership decisions and part the federal
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
1177
policy favoring tribal self-government, matters tribal enrollment are
generally beyond federal judicial scrutiny. Alvarado Table Mountain
Rancheria, 509 F.3d 1008, 1011 (9th Cir. 2007). Courts have consistently
recognized that one Indian tribe most basic powers the authority determine questions its own membership. COHEN HANDBOOK
FEDERAL INDIAN LAW 3.03[3], 175 (2012 ed.).
Congress has also been highly protective tribes powers organize reorganize their own governments, draft and ratify their own
constitutions other governing documents, and conduct their own
elections. See, e.g., U.S.C. 476, 503, 677e, 903b; see also id.
476(h)(1) each Indian tribe shall retain inherent sovereign power
adopt governing documents
Consistent with Federal law, tribes traditionally have
excluded non-Natives from both membership and voting,
practice that Federal courts uniformly have upheld.
Having worked government-to-government basis with more than
500 federally recognized Indian tribes the continental United States, the
Department recognizes that tribes traditionally have not included nonNatives full members their political communities voters tribal
elections, including constitutional ratification referenda. This fact not
surprising, since, definition, non-Natives lack Native American descent
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
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which essential aboriginal claim sovereignty under the
Constitution.
Moreover, excluding non-Natives from tribes internal political
processes fully comports with Federal law. See, e.g., U.S.C. 476, 503,
677e, 903b. the Supreme Court explained Rice Cayetano, 528 U.S.
495 (2000), non-Indians lack the right vote tribal elections because
such elections are the internal affair quasi sovereign. Id. 520.
Because tribes pre-date the Constitution and did not participate
the Constitutional Convention, they are not governed constitutional
provisions framed specifically limitations federal state authority,
including the Bill Rights and the Civil War Amendments. Santa Clara
Pueblo, 436 U.S. 56; see Plains Commerce Bank Long Family Land
Cattle Co., 554 U.S. 316, 337 (2008); Talton Mayes, 163 U.S. 376, 382-85
(1896). Therefore, tribe decision exclude non-Natives from its
membership rolls from its elections cannot violate the Fifteenth,
Fourteenth, First Amendment.
Likewise, the Voting Rights Act 1965, amended, U.S.C.
10301-10314, directed only State political subdivision. Id.
10301(a). any Voting Rights Act claim against Indian tribe must
fail. See, e.g., Gardner Ute Tribal Court Chief Judge, Fed. App 927,
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
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928 (10th Cir. 2002); Cruz Ysleta Del Sur Tribal Council, 842 Supp.
934, 935 (W.D. Tex. 1993).
Tribes exercise sovereign governmental powers constrained,
however, the Indian Civil Rights Act, U.S.C. 1301-1304. ICRA
guarantees most, but not all, the protections for individual liberties
similar those found the Bill Rights and the Civil War Amendments,
and makes them applicable tribes. See id. 1302(a). For example, ICRA
expressly bars Indian tribe from making enforcing laws abridging the
freedom speech, id. 1302(a)(1), and from deny[ing] any person
within its jurisdiction the equal protection its laws, id. 1302(a)(8).
However, the Department unaware any court applying ICRA
invalidate tribe decision exclude non-Natives from tribal elections.
Indeed, these challenges have uniformly failed. See, e.g., Yellow Bird
Oglala Sioux Tribe, 380 Supp. 438, 439-41 (D.S.D. 1974); see also
Wounded Head Tribal Council Oglala Sioux Tribe, 507 F.2d 1079,
1083 (8th Cir. 1975) (interpreting ICRA equal-protection clause require
only that tribe treat equally votes cast members the tribe already
enfranchised the tribe itself, and not allow claims seeking
enfranchise new class voters); Randall Yakima Nation Tribal
Court, 841 F.2d 897, 899-900 (9th Cir. 1988) (describing ICRA standards).
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
1180
More tellingly, Congress chose not incorporate into ICRA
guarantee similar the Fifteenth Amendment prohibition against
denying the right vote account race [or] color. U.S. CONST.
amend. XV, Indeed, Congress consciously rejected the idea
incorporating Fifteenth Amendment analogue into ICRA. See Groundhog Keeler, 442 F.2d 674, 681-82 (10th Cir. 1971). early draft ICRA would have applied the Fifteenth Amendment tribal elections. See 961, 89th Cong. (1965). Then-Solicitor the
Interior Frank Barry testified against this feature the bill: doubt
tribe would want restrict voting members and restrict membership persons having certain proportion Indian blood. Constitutional
Rights the American Indian: Hearings 961-968 and S.J. Res.
Before the Subcomm. Constitutional Rights the Comm. the
Judiciary, 89th Cong. (1965). Solicitor Barry added that Federal
statute requiring tribes enfranchise non-Natives would not
consistent all with [our] system Indian administration and would
effectively abolish tribal governments, subsuming them within state
governments. Id. 50. The Department proposed substitute bill that
selectively incorporated key constitutional protections while omitting any
Fifteenth Amendment-like provision. See id. 18-19. That proposal
Case 1:15-cv-00322-JMS-BMK Document Filed 10/14/15 Page
1181
became the model for the bill that Congress ultimately passed, deleting the
Fifteenth Amendment analogue from the legislation and enacting ICRA
with restrictions against barring non-Natives from tribal elections. See
Subcomm. Constitutional Rights the Comm. the Judiciary, 89th
Cong., Constitutional Rights the American Indian: Summary Rep.
Hearings and Investigations Pursuant Res. 194, 10, 25-26 (Comm.
Print 1966).
Excluding non-Natives from tribal elections also routine,
and lawful, tribal elections conducted the Secretary
the Interior.
Unlike Indian tribe, the Secretary the Interior constrained
the Federal Constitution. See Cheyenne River Sioux Tribe Andrus, 566
F.2d 1085, 1088-89 (8th Cir. 1977). Under the Indian Reorganization Act, U.S.C. 476, and the Oklahoma Indian Welfare Act, U.S.C. 503, the
Secretary conducts elections ratify new tribal constitutions. Although
these Secretarial elections are subject the Constitution, the exclusion
non-Natives routine, the statutes are expressly designed reorganize
Indians. U.S.C. 476, 503.
Part Title the Code Federal Regulations governs these
Secretarial elections adopt tribal governing document. One the
Department responsibilities, through election board chaired
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Bureau Indian Affairs employee, compile and post[] the official
list registered voters. C.F.R. 81.12. The Part regulations further
provide that, when tribe considering whether reorganize for the first
time, [a]ny duly registered adult member [of the tribe,] regardless
residence[,] shall entitled vote the adoption constitution.
C.F.R. 81.6(a)(1). member defined any Indian who duly
enrolled tribe [1] who meets tribe written criteria for membership
[2] who recognized belonging tribe the local Indians
comprising the tribe. Id. 81.1(k) (emphasis added). the right vote these Secretarial elections turns not residence the tribe territory,
but rather membership the tribe and Indian status. See id.
81.6(a)(2) (permitting registered adult nonresident members vote
absentee ballot); see also Fed. Reg. 61021, 61029 (Oct. 2014).
Like other tribal elections that include only Natives, these Secretarial
elections, well the regulations authorizing them which have now
been effect for more than third century have never been
successfully challenged for excluding non-Natives. See, e.g., St. Germain
U.S. Dep the Interior, No. C13-945RAJ, 2015 2406758, *4-6
(W.D. Wash. May 20, 2015).
This fact not surprising. Federal laws singling out Indians not
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1183
offend the Constitution long the special treatment can tied
rationally the fulfillment Congress unique obligation toward the
Indians and reasonable and rationally designed further Indian selfgovernment. Mancari, 417 U.S. 555; see EEOC Peabody Western
Coal Co., 773 F.3d 977, 987 (9th Cir. 2014). This standard reflects the
settled principle memorialized entire title the U.S. Code (Title
25) that Federal Indian laws regulate once-sovereign political
communities, not racial group consisting Indians. United States
Antelope, 430 U.S. 641, 646 (1977) (citation and internal quotation marks
omitted); see id. 645-47; Washington Yakima Indian Nation, 439 U.S.
463, 500-01 (1979); Mancari, 417 U.S. 551-55; see also Peabody, 773
F.3d 985-89.
Federal law provides basis for treating the Native
Hawaiian community differently from any tribe the
continental United States.
The principles Federal law summarized above, developed largely
the context Indian tribes the continental United States, apply with
equal force the Native Hawaiian context. enacting scores Federal
statutes directly affecting the Native Hawaiian community over the last
century, Congress has exercised its Indian-affairs plenary power repeatedly
and often expressly. 1920, Congress found constitutional precedent
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for the Hawaiian Homes Commission Act, Stat. 108 (1921), previous
enactments granting Indians special privileges obtaining and using the
public lands. H.R. Rep. No. 66-839, (1920). 1992, Congress stated
that its constitutional authority legislate matters affecting the
aboriginal indigenous peoples the United States includes the authority legislate matters affecting the native peoples Alaska and Hawaii. U.S.C. 11701(17). And 2002, Congress recognized and reaffirmed
that does not extend services Native Hawaiians because their race,
but because their unique status the indigenous people once
sovereign nation whom the United States has established trust
relationship. U.S.C. 7512(12)(B); see Pub. No. 106-569,
512(13)(B), 114 Stat. 2968 (2000).
Congress treatment the Native Hawaiian community distinct
indigenous group for which may enact special legislation manifestly
reasonable. Native Hawaiians have cultural, historic, and land-based link the indigenous people who once exercised sovereignty over the Hawaiian
Islands, and that group has never relinquished its claim its sovereignty.
See Pub. No. 103-150, 107 Stat. 1510, 1512-13 (1993); NPRM 59114-18.
See generally United States Sandoval, 231 U.S. 28, 46-47 (1913).
That history why this Court, the Ninth Circuit, and the Hawaii
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Supreme Court have all held that the Native Hawaiian community falls
within the scope Congress Indian-affairs power. See, e.g., Naliielua
State Hawaii, 795 Supp. 1009, 1012-13 (D. Haw. 1990), aff 940 F.2d
1535 (9th Cir. 1991) (table op.); Rice Cayetano, 146 F.3d 1075, 1082 (9th
Cir. 1998) (citing Mancari and rejecting plaintiffs Fourteenth Amendment
claim), vacated other grounds, 528 U.S. 495, 522 (2000); Ahuna
Dep Haw. Home Lands, Haw. 327, 339 (1982); see also
Kahawaiolaa, 386 F.3d 1278-79 (applying Mancari rational-basis
review and distinguishing Rice, 528 U.S. 519-22).
The fact that the Native Hawaiian community currently lacks
organized government does not preclude the application principles
Native self-governance and self-determination. See United States John,
437 U.S. 634, 649-53 (1978) (upholding Congress power legislate for
Indians who had federally recognized tribal government); see also Lara,
541 U.S. 203 (noting Congress power restore previously
extinguished tribal status re-recognizing Tribe whose tribal
existence previously had terminated Any ruling that purports
require the Native Hawaiian community include non-Natives
organizing government could mean practice that Native group could
never organize itself, impairing its right self-government and frustrating
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its eligibility for government-to-government relationship with the United
States.
Plaintiffs suggest (Doc. No. 47-1, Pls. Br. 9-11) that this case
requires only straightforward application the Supreme Court holding Rice Cayetano, but they seek decision reaching far beyond any issue
resolved Rice. The Court Rice expressly reserved the question whether
Congress generally may treat the native Hawaiians does the Indian
tribes, 528 U.S. 518, and instead confined its holding the specific
Fifteenth Amendment context presented there: state elections for state
officials responsible for administering state laws and for running state
agency established the state constitution. See id. 520-22. contrast,
this case about Native Hawaiian elections for Native Hawaiian delegates convention that might propose constitution other governing
document for the Native Hawaiian community. This election has nothing with governing the State Hawaii.
Nor does the State provision assistance the Native Hawaiian
process self-determination alter the legal analysis. admitting Hawaii the Union, Congress assigned the State the day-to-day administration key aspects the Federal trust responsibility for Native Hawaiians. See
Pub. No. 86-3, 4-5, Stat. 5-6 (1959); Ahuna, Haw. 337-38;
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see also U.S.C. 11701(16). Subsequently, Congress has often called
upon the State serve the United States partner implementing the
special political and trust relationship with the Native Hawaiian
community: More than sections the U.S. Code expressly refer the
state agencies for Native Hawaiian affairs and homelands. See, e.g.,
U.S.C. 2991b-1, 11711(7)(A)(ii). The programs the State administers with
congressional authorization provide benefits Native Hawaiians, and
therefore necessarily entail identifying eligible Native Hawaiians
function not unlike the one challenged this litigation. See, e.g., U.S.C.
2991b-1(a)(1)(A), 11709(a)(2), 11711(7)(A)(ii). Just Federal assistance tribal election conducted under the Secretary auspices does not divest Native community actions their character internal matters selfgovernance, there reason conclude that assistance from the State
should have that effect here.
CONCLUSION
Though the Department NPRM does not directly impact the issues
presented this preliminary-injunction proceeding, the NPRM rooted century congressional precedent treating the Native Hawaiian people distinct indigenous political community, just Congress treats tribes the continental United States. That treatment does bear the issues
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before the Court. political community entitled self-determination,
the Native Hawaiian people have the same fundamental rights political
liberty and local self-government any Indian tribe. Native Hawaiians
should not relegated second-class status among our Nation
indigenous peoples.
Accordingly, this basis alone, plaintiffs motion should denied.
DATED: October 14, 2015, Honolulu, Hawaii.
FLORENCE NAKAKUNI
United States Attorney
District Hawaii
/s/ Thomas Helper
THOMAS HELPER
Assistant U.S. Attorney
Attorneys for Amicus Curiae
THE UNITED STATES
DEPARTMENT THE
INTERIOR