Lā 264: Supreme Court Rulings Leave Hawaiian Concerns In Limbo

Honolulu Civil Beat  Dec 14, 2015   By The Civil Beat Editorial Board

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Plaintiffs and their supporters listen intently during oral arguments last August at the Hawaii Supreme Court on the Thirty Meter Telescope project. Cory Lum/Civil Beat

Resolutions of the Naʻi Aupuni elections and Thirty Meter Telescope cases are far from over, but key Native Hawaiian concerns seem unlikely to prevail in either matter.

Dec. 2 was something of a mixed bag for Native Hawaiians, whose interests were simultaneously addressed that day by the supreme courts of both the United States and the State of Hawaii. But that’s hardly new. For Native Hawaiians, it always seems to be a mixed bag.

The U.S. Supreme Court temporarily blocked the election of delegates for a convention that would focus on Native Hawaiian governance, until the 9th U.S. Circuit Court of Appeals rules on a challenge to the constitutionality of that election. The injunction cast doubt on the ultimate viability of that election, should the matter eventually be heard by the high court. By his earlier stay in the case, Justice Anthony Kennedy signaled that he feels a challenge to the election could win on appeal.

Back in Honolulu, Hawaii Supreme Court justices ruled the same day that state officials violated due process when they granted a construction permit for the Thirty Meter Telescope project. To move forward on that project, which is loudly opposed by a significant portion of the Native Hawaiian community, justices said TMT leaders will have to seek re-approval for the permit, a process that could take a year, maybe longer.

It wouldn’t be accurate to call the net effect of the two cases positive or negative for Native Hawaiians; as with any other ethnic or racial group, its members’ opinions are diverse and defy easy generalization.

But we can draw one conclusion from this day of decisions: The struggle will continue to be difficult, contentious and unpredictable to ensure that Native Hawaiian concerns carry any weight in our policy decisions and that Native Hawaiians have some measure of self determination in matters critical to their community.

The U.S. Supreme Court injunction provides a vivid illustration. Despite generations of efforts to restore some form of Native Hawaiian governance, despite a formal federal apology more than 20 years ago for the illegal, U.S.-backed overthrow of the Hawaiian government and despite a carefully constructed process this year to elect delegates for a governance convention, the cause of self determination is likely to land back at square one when this case reaches its conclusion.

This is not to say that Native Hawaiians are unified behind the Nai Aupuni elections, which continue through Dec. 21. To the contrary: Criticisms of the process had deeply divided the community, with some longstanding leaders condemning it and others calling it a once-in-a-lifetime opportunity.

Civil Beat argued that the best place to continue that conversation and to engage in other critical dialogues would be the very governance conference for which delegates were being elected. Where else might Native Hawaiian concerns be more appropriately addressed by those who ought to be responsible for them?

But that prospect seems increasingly unlikely. Justice Kennedy’s initial stay on the Naʻi Aupuni elections indicated he felt the plaintiffs in the case — the Grassroot Institute and its legal allies — met a test essential to granting of the stay: A likelihood of success on appeal with a case that alleges the Naʻi Aupuni process violates the 15th Amendment of the U.S. Constitution.

Screen Shot 2015 12 14 At 8.50.12 PmEven if Nai Aupuni prevails in the 9th Circuit, that decision certainly would be appealed to the high court. If the case were accepted, some court observers say that chances of Nai Aupuni prevailing appear slim, given the court’s current makeup and justices’ likely positions.

The state Supreme Court decision, conversely, might be seen as a win for Native Hawaiians — at least for those who continue to be opposed to what they see as desecration of a sacred Hawaiian place.

But as Civil Beat columnist Ian Lind rightly pointed out this week, the ruling had nothing to do with the idea of whether the mega-telescope ought to be built atop Mauna Kea. The justices offered no opinion on that topic, ruling only that granting a conditional permit for construction before holding a contested case hearing on the permit violated due process.

TMT leaders are likely, at this point, to pursue the permit again, and there is little reason to believe they won’t ultimately prevail. Only last month, they were preparing to send construction crews back to Mauna Kea, with the full support of state authorities.

But a TMT-produced poll rolled out just before the announcement that construction would resume, though, showed nearly half of Native Hawaiian respondents still oppose the project, despite survey wording seemingly designed to lead respondents toward a supportive position. Indeed, a bare majority of Native Hawaiians were supportive, along with strong majorities of Caucasians, Filipinos and Japanese.

Whether one believes construction should go forward or not, it’s probably accurate to say that those Hawaii residents who feel most strongly about it are Native Hawaiian opponents. Gov. David Ige has addressed many of their concerns, but that doesn’t appear to have significantly changed the hearts or minds of the opponents.

Whether a new permitting process that legitimately takes their concerns into account will do so is anyone’s guess; but as with the Nai Aupuni case, it’s difficult to envision those concerns carrying the day.

So, regardless of how one feels about the Nai Aupuni elections or construction of the TMT, when all is said and done it appears unlikely that Native Hawaiian governance or Native Hawaiian arguments over what they might describe as the cultural and spiritual desecration of Mauna Kea will be ideas that prevail.

Some 122 years ago, the United States played a critical role in the overthrow of the Hawaiian government, and took over these islands in dubious processes that are rightfully questioned to this day. Native Hawaiian struggles to acquire more substantial control over the community’s affairs and to see that community’s cultural concerns honored aren’t over. For Native Hawaiians, there may be no acceptable end in sight, nor any resolution that brings peace to a community that has experienced generation after generation of disappointment, broken promises and dashed hopes.

As Native Hawaiians look for a way forward on both of these matters, we hope 2016 will bring a greater sense of community unity and, no matter the course of action, meaningful results that deliver an equal sense of satisfaction.