c.a. no. no. 15-17453 united states court of appeals for ... · on july 6, 2011, then-governor neil...

C.A. No. No. 15-17453

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______

KELl'I AKINA, et al.

Plaintiffs-Appellees,

v.

STAT E OF HAWAII, et al.,

Defendants-Appellees,

and

SAMUEL L. KEALOHA, JR., VIRGIL E. DAY, JOSIAH L. HOOHULI,

PATRICK L. KAHAWAIOLAA and MELVIN HOOMANAWANUI

Interveors-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

D.C. No. 1:15-CV-00322-JMS-BMK

HON. J. MICHAEL SEABRIGHT, PRESIDING

_______

OPENING BRIEF OF APPELLANTS

_______

WALTER R. SCHOETTLE 1559

P. O. Box 596

Honolulu, Hawaii 96809

Telephone: 537-3514

email: [email protected]

Attorney for Intervenors,,

SAMUEL L. KEALOHA, et al.

Case: 15-17453, 03/21/2016, ID: 9909872, DktEntry: 10, of 32

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

I. Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Statutory basis for the subject matter jurisdiction of the District Court.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Basis for claiming appellate jurisdiction. . . . . . . . . . . . . . . . . . . . . . . 4

C. Timeliness of appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. Statement of Issues Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Whether the District Court erred as a matter of law in denying the

motion to intervene? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

III. Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Facts relevant to issues submitted for review. . . . . . . . . . . . . . . . . . . 5

B. Relevant procedural history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

IV. Ruling Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

V. Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

VI. Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

VII. Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Timeliness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. Significantly Protectable Interest.. . . . . . . . . . . . . . . . . . . . . . . . . . 14

C. Imparement of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

D. Adequacy of Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

E. INTERVENORS’ claims are not precluded by res judicata. . . . . . . 23


ii

VIII. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Statement of Related Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27


iii

TABLE OF AUTHORITIES

Cases cited:

Akina et al. v. Hawaii, et al, 577 U.S. (2015)(15A551). . . . . . . . . . . . . 14, 15, 18,

21

Day v. Apoliona, 451 F.Supp. 2d 1133 (D. Haw. 2006) . . . . . . . . . . . . . . . . . 12, 20

Estate of Dixon, 666 F.2d 386, 388 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . 14

Ex parte National Enameling Co., 201 U.S. 156 (1906); . . . . . . . . . . . . . . . . . . . . 3

Kahawaiolaa v. Norton, 386 F.3d 1271 (9th Cir. 2004). . . . . . . . . . . . . . . . . . 9, 23

Kealoha v. Machado, 131 Haw. 62, 315P.3d 213 (2013) . . . 12, 14, 15, 18, 19, 20,

21, 23

Morton v. Mancari, 417 U.S. 535 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 21

Phelan v. Taitano, 233 F.2d 117 (9th Cir. 1956) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Plotkin v. Pacific Tel. And Tel. Co., 688 F.2d 1291 (9th Cir. 1982) . . . . . . . . . 2, 3

Rice v. Cayetano, Rice v. Cayetano, 528 U.S. 495 (2000) . . . . . . . . . 12, 17, 18, 20

Statutes cited

25 U.S.C. § 479 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 15, 18, 20

42 U.S.C. § 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

52 U.S.C. § 10301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 21


iv

H.R.S. § 10H-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

H.R.S. § 10H-2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

H.R.S. § 10H-3(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9

H.R.S. § 10H-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17, 18, 20

HHCA, § 201(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Rules cited:

Fed.R.App.Proc., Rule 4(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4


1

CA. NO. 15-17453

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KELI’I AKINA, et al.,

Plaintiffs-Appellees,,

v.

STATE OF HAWAII, et al.,

Defendants-Appellees,

and

SAMUEL L. KEALOHA, JR., et al.,

Intervenor-Appellants.

BBBB............CCCC............................................

No. 15-17134

D.C. No. 1: 15-cv-00322-JMS-BMK

District of Hawaii,

Honolulu

DDDD

OPENING BRIEF OF APPELLANTS

I. JURISDICTIONAL STATEMENT

A. Statutory basis for the subject matter jurisdiction of the District Court.

The complaint asserts claims by Plaintiffs for alleged violations of their voting

rights and right to Free Speech, protected by the First, Fourteenth and Fifteenth

Amendments to the United States Constitution and the Voting Rights Act, 52 U.S.C.

§ 10301 et seq, and 42 U.S.C. § 1983. ER, PP. 174-82. The District Court has


2

jurisdiction over these federal claims for alleged civil rights violations pursuant to 28

U.S.C. § 1331 and 28 U.S.C. § 1343.

However, in this case, the District Court was concerned that jurisdiction over

the motion to intervened was lost when Plaintiffs appealed from the denial of their

motion for preliminary injunction. ER, pp. 105-7. The interlocutory appeal from the

denial of the motion for preliminary injunction did not deprive the District Court to

proceed on the merits of the case. Ex parte National Enameling Co., 201 U.S. 156,

162 (1906); Plotkin v. Pacific Tel. And Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982).

In National Enameling, the U.S. Supreme Court recognized that an appeal from

an interlocutory order, such as an order denying motions for preliminary injunction,

does not deprive the lower court of jurisdiction to proceed to the merits of the case,

as follows:

It will be noticed that the appeal is allowed from an interlocutory order

or decree granting or continuing an injunction, that it must be taken

within thirty days, that it is given precedence in the appellate court, that

the other proceedings in the lower court are not to be stayed, and that the

lower court may require an additional bond. Obviously that which is

contemplated is a review of the interlocutory order, and of that only. It

was not intended that the cause as a whole should be transferred to the

appellate court prior to the final decree. The case, except for the

hearing on the appeal from the interlocutory order, is to proceed in the

lower court as though no such appeal had been taken, unless

otherwise specially ordered.

Id., pp. 161-2.


3

The Ninth Circuit Court has followed this exception to the general rule in

Phelan v. Taitano, 233 F.2d 117, 119 (9th Cir. 1956) and Plotkin v. Pacific Tel. and

Tel. Co, supra., 688 F.2d 1291, 1293 (9th Cir. 1982), as follows:

It appears that when appellants filed a notice of appeal from the order

denying the preliminary injunction, there was pending before the court

a motion of appellees to dismiss the action, which motion was

subsequently granted by the court. The appellants then filed a notice of

appeal from the order dismissing the action and contend inter alia that

the trial court did not have jurisdiction to rule on the motion to dismiss.

An appeal from an interlocutory order does not divest the trial court of

jurisdiction to continue with other phases of the case. “The case, except

for the hearing on the appeal from the interlocutory order, is to proceed

in the lower court as though no such appeal had been taken, unless

otherwise specially ordered.” Ex parte National Enameling & Stamping

Co., 201 U.S. 156, 26 S.Ct. 404, 406, 50 L.Ed. 707.

Phelan v. Taitano, supra, 233 F at 119.

And:

Finally, Kilgore contends that the District Court was without power to

enter summary judgment during the pendency of Kilgore’s appeal from

the interlocutory order denying injunctive relief. This contention is

without merit. We hold that an appeal from an interlocutory order does

not stay the proceedings, as it is firmly established that an appeal from

an interlocutory order does not divest the trial court of jurisdiction to

continue with other phases of the case. Phelan v. Taitano, 233 F.2d 117,

119 (9th Cir. 1956). Ex parte National Enameling & Stamping Co., 201

U.S. 156, 162, 26 S.Ct. 404, 406, 50 L.Ed. 707 (1906)p 9 J. Moore,

Moore’s Federal Practice ¶ 203.11 (2d ed. 1981).

Plotkin v. Pacific Tel. And Tel. Co., 688 F.2d at 1293.

Clearly, if the appeal from the denial of the motion for preliminary injunction

does not deprive this court of jurisdiction to dismiss the complaint or grant summary


4

judgment on the merits, it does not deprive this court of jurisdiction to address the

motion to intervene.

B. Basis for claiming appellate jurisdiction.

This is an appeal from an order denying Appellants’, KEALOHA, DAY,

HOOHULI, KAHAWAIOLAA and HOOMANAWANUI (hereafter

“INTERVENORS“), motion to intervene as a matter of right pursuant to

Fed.R.Civ.Proc., Rule 24(a)(2). ER, pp. 113-4. Orders denying motions to intervene

are generally final appealable orders. Estate of Dixon, 666 F.2d 386, 388 (9th Cir.

1982). This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

C. Timeliness of appeal.

The order denying the motion to intervene was filed on November 13, 2015.

ER, p. 1. The notice of appeal was filed on December 11, 2015. ER, p. 75. The notice

of appeal was filed within the 30-day time limit as provided by Fed.R.App.Proc., Rule

4(a)(1)(A) and was timely.

II. STATEMENT OF ISSUES PRESENTED FOR REVIEW

A. WHETHER THE DISTRICT COURT ERRED AS A MATTER OF LAW IN

DENYING THE MOTION TO INTERVENE?


5

III. STATEMENT OF THE CASE

A. Facts relevant to issues submitted for review.

INTERVENORS are all native Hawaiians of not less than one-half part of the

blood of the races inhabiting the Hawaiian Islands previous to 1778, as defined in the

Hawaiian Homes Commission Act (HHCA), § 201(a). ER, pp. 108, 115, 120, 125,

and 129-30.

On July 6, 2011, then-Governor Neil Abercrombie signed into law Act

195, which is codified in substantial part in HRS Chapter 10H. Act 195

begins by declaring that “[t]he Native Hawaiian people are hereby

recognized as the only indigenous, aboriginal, maoli people of Hawaii.”

HRS § 10H-1. The purpose of Act 195 is to:

provide for and to implement the recognition of the Native

Hawaiian people by means and methods that will facilitate their

self-governance, including the establishment of, or the

amendment to, programs, entities, and other matters pursuant to

law that relate, or affect ownership, possession, or use of lands by

the Native Hawaiian people, and by further promoting their

culture, heritage, entitlements, health, education, and welfare.

HRS § 10H-2.

Act 195 establishes a five-member commission, which is responsible for

preparing and maintaining a roll of “qualified Native Hawaiians.” HRS

§ 10H-3(a)(1). As summarized above, § 10H-3(a)(2) (as amended by Act

77, 2013 Haw. Sess. Laws), defines a “qualified Native Hawaiian” as

an individual whom the commission determines has satisfied the

following criteria and who makes a written statement certifying that the

individual:

(A) Is:

(i) An individual who is a descendant of the aboriginal peoples

who, prior to 1778, occupied and exercised sovereignty in the


6

Hawaiian islands, the area that now constitutes the State of

Hawaii;

(ii) An individual who is one of the indigenous, native people of

Hawaii and who was eligible in 1921 for the programs authorized

by the Hawaiian Homes Commission Act, 1920, or a direct lineal

descendant of that individual; or

(iii) An individual who meets the ancestry requirements of

Kamehameha Schools or of any Hawaiian registry program of the

[OHA];

(B) Has maintained a significant cultural, social, or civic

connection to the Native Hawaiian community and wishes to

participate in the organization of the Native Hawaiian governing

entity; and

(C) Is eighteen years of age or older[.]

HRS § 10H-3(a)(2).

ER, pp.

There is no blood quantum in this definition of “qualified Native Hawaiian” as

there is in the definition of “native Hawaiian” beneficiaries of the HHCA. H.R.S. §

10H-5 provides for a convention to be held using the Roll of “qualified Native

Hawaiians” in creating a governing entity which has been recognized by the State of

Hawaii to “facilitate their self-governance, including the establishment of, or the

amendment to, programs, entities, and other matters pursuant to law that relate, or

affect ownership, possession, or use of lands by the Native Hawaiian people . . . . ”

H.R.S. § 10H-2.

INTERVENORS allege that this means that it is intended that the available

lands set aside by HHCA and under the administration of the State of Hawaii


7

Department of Hawaiian Home Lands (DHHL) will eventually be transferred to the

entity to be created by Defendants pursuant to this election process.

Linda Chinn, DHHL Administration, Land Management Division, testified as

follows that there is a provision in all DHHL licenses and leases anticipating a

transfer of Hawaiian Home Lands to a sovereign entity having DHHL beneficiaries

as its citizens, as follows:

“In the event ownership of the premises is transferred from licensor to

another governmental or quasi-governmental agency, including but not

limited to any sovereign government or entity having as its citizens or

beneficiaries Native Hawaiians who are beneficiaries under the

Hawaiian Homes Commission Act.”

ER, pp. 134, 136, 138.

At the time the complaint was filed and the hearing on the motion for

preliminary injunction held, Defendants were planning to hold an election using the

Roll prepared with the definition of “qualified Native Hawaiian” above to hold a

convention to draft a constitution for this entity. ER, p. 3.

Two months after the convention is held, in June, Defendant Nai Aupuni will

be holding another election using this Roll to ratify the constitution that is drafted at

this convention. ER, p. 30. If that election is held using the Roll to determine

qualified voters and if that constitution is ratified, that entity will represent

INTERVENORS and all other HHCA beneficiaries and will have already been


8

recognized by the State of Hawaii as the entity to govern ownership, possession and

use of the Hawaiian Home Lands. H.R.S. § 10H-2.

B. Relevant procedural history.

Plaintiffs are a group of people who are either not “qualified Native

Hawaiians” who want to vote in the election or “qualified Native Hawaiians” who

have been included in the Roll against their will. On August 13, 2015, Plaintiffs filed

suit in the U.S. District Court for the District of Hawaii to enjoin the use of the Roll

established by H.R.S., Chapter 10H in holding elections. ER, pp. 182-3.

Plaintiffs filed a motion for preliminary injunction to stop an election for

delegates to a constitutional convention pursuant to H.R.S. § 10H-5, which motion

was denied orally on October 23, 2015. ER, p. 196. A written order was filed on

October 29, 2015. ER, 11-74. In the meantime, on October 26, 2015, Plaintiffs filed

a notice of appeal of the order denying their motion for preliminary injunction. ER,

pp. 105-7.

INTERVENORS filed their motion to intervene, on September 25, 2015. ER,

pp. 113-4. INTERVENORS seek to file a crossclaim against Defendants, State of

Hawaii, OHA, the Roll Commission, Nai Aupuni and , seeking declaratory relief that

the establishment of this entity without a blood quantum is a violation of

INTERVENORS’ rights to equal protection, under the Fourteenth Amendment and


9

Indian Reorganization Act; and providing that the definition of “qualified Native

Hawaiian” in H.R.S. § 10H-3(a)(2) be limited to “native Hawaiians” as defined in the

HHCA. ER, p. 90. The proposed crossclaim also seeks declaratory relief that all

income and proceeds from the trust established by § 5(f) of the Hawaii Admission Act

expended for the election and convention was in violation of the terms of the trust,

and recovery of any such funds already expended. ER, p. 90-1. The motion to

intervene was denied without hearing by written order filed on November 13, 2015.

ER, pp. 1-10.

Since the appeals were filed, on December 2, 2015, the United States Supreme

Court enjoined the counting of votes and certification of winners in the election for

delegates to the Constitutional Convention. Akina, Keli’i, et al. v. Hawaii, et al, 577

U.S. (2015)(15A551). Nai Aupuni then decided to forego the election of

delegates to the convention and allow all candidates to participate as delegates in the

convention. The Supreme Court denied a motion for contempt for doing so, on

January 19, 2016. Id.

Since then, the convention has been held and Nai Aupuni has decided not to

hold a ratification election, apparently in fear that the document they created will not

be ratified. Instead, the delegates have been instructed to lobby in the community for


1

http://www.civilbeat.com/2016/03/nai-aupuni-wont-pursue-vote-on-native-hawaiian-constitution

/

10

eventual ratification when they are more confident of success.1

IV. RULING PRESENTED FOR REVIEW

The District Court denied the motion to intervene, holding as follows:

Given these proposed claims, Proposed Intervenors do not satisfy the

test for intervention. That is, they do not have a “significantly

protectable interest relating to the property or transaction that is the

subject of the action.” Arakaki, 324 F.3d at 1083. And they are not

“situated such that the disposition of the action may impair or impede

[their] ability to protect [their] interest[s].” Id. Rulings by this court

regarding Nai Aupuni’s election and the requirements of Act 195 would

be, at best, tangential to the Proposed Intervernors’ proposed claims --

their proposed claims are not at issue in this case.

In relevant part, the current action asserts that precluding non-

Hawaiians (as “Hawaiians” are defined in HRS 10H-3(a)(2)(A), and

HRS 10-2) violates equal protection. Proposed Intervenors would raise

an entirely different equal protection claim -- that allowing “Hawaiians”

with less than a one-half blood quantum (as set forth in the Hawaiian

Homes Commission Act) violates Proposed Intervenors’ Equal

Protection rights. A ruling in this suit that Nai Aupuni’s election and Act

195 violates any of the Plaintiffs’ equal protection or due process rights

will not “impair or impede” the Proposed Intervenors’ ability to protect

their interests. Arakaki, 324 F.3d at 1083.

Further, Plaintiffs’ suit does not raise a breach of trust claim under § 5(f)

of the Admission Act. Thus, Proposed Intervenors seek improperly to

expand the suit well beyond the scope of the current action.4 See, e.g.,

Arakaki, 324 F.3d at 1086 (“Hoohuli does not have a significantly

protectable interest in its dilution claim to limit benefits to native

Hawaiians. This claim is unrelated to Plaintiffs’ equal protection


11

challenge seeking to invalidate all benefits to Hawaiians and native

Hawaiians. Hoohuli is not permitted to inject new, unrelated issues into

the pending litigation.”) (citation omitted); Donnelly v. Glickman, 159

F.3d 405, 409-10 (9th Cir. 1998) (upholding a denial of intervention

where the proposed claims were “unrelated” to the existing claims, and

where resolution of the plaintiff’s claims would not affect the

applicant’s claims).

Moreover, courts have already considered and rejected the Proposed

Intervenors’ claims in similar cases. See Day v. Apoliona, 616 F.3d 918,

927 (9th Cir. 2010) (concluding that OHA trustees would not violate §

5(f) duties by using trust proceeds to support the Akaka Bill, which

would define “native Hawaiian” without a blood quantum limit);

Kealoha v. Machado, 131 Haw. 62, 78-79, 315 P.3d 213, 229-30 (2013)

(upholding dismissal of Proposed Intervenors’ claim that OHA trustees’

expenditure of § 5(f) funds “for the benefit of Hawaiians without regard

to blood quantum” was a breach of fiduciary duty); Day v. Apoliona,

451 F. Supp. 2d 1133, 1146 (D. Haw. 2006) (dismissing Proposed

Intervenors’ equal protection claim that lack of blood quantum

requirement in proposed definition of “native Hawaiian” would deprive

them of equal protection), affirmed in part, reversed in part on other

grounds, 496 F.3d 1027 (9th Cir. 2007)).

V. SUMMARY OF ARGUMENT

First: The entity which Defendants are seeking to establish is clearly analogous

to an Indian tribe. The Indian Reorganization Act allows for recognition of Indian

tribes, but it does not apply to “native Hawaiians.” Kahawaiolaa v. Norton, 386 F.3d

1271 (9th Cir. 2004). The definition of “Indian” in the IRA includes members of

Indian tribes and their descendants and persons of “one-half or more Indian blood.”

25 U.S.C. § 479. Once an Indian tribe is recognized, it is the right of the tribe to


12

establish membership requirements. But the initial application for recognition must

be by “Indians” of “one-half or more Indian blood.”

Here, the State seeks to establish a quasi-tribe comprised of as many as 500,000

“qualified Native Hawaiians” to represent approximately 40,000 “native Hawaiians.”

In Rice v. Cayetano, 528 U.S. 495 (2000), Justice Breyer completely rejected the idea

of creating a quasi-Indian tribe for Hawaiians without a blood quantum. Rice v.

Cayetano, supra, at 526-7 [Breyer, J., Concurring].

Doing so would violate INTERVENORS’ rights to equal protection, especially

in light of the State’s intention to eventually convey the Hawaiian Home Lands to this

quasi-tribe. The District Court did not even address this argument, which was raised

at pages 13 to 17 of the memorandum in support of the motion to intervene. The

District Court did not even address this argument in the order denying the motion.

Second: Expenditure of trust money that is limited to the five purposes set forth

in § 5(f) of the Admission Act, cannot be justified as being for one of the five

permitted purposes and was clearly in violation of the trust.

VI. ARGUMENT

A. Standard of Review.

The District Court applied the correct standard of review, set forth in Arakaki

v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003), as follows:


13

A party seeking to intervene as of right must meet four requirements: (1)

the applicant must timely move to intervene; (2) the applicant must have

a significantly protectable interest relating to the property or transaction

that is the subject of the action; (3) the applicant must be situated such

that the disposition of the action may impair or impede the party’s

ability to protect that interest; and (4) the applicant’s interest must not

be adequately represented by existing parties.

ER, p. 5.

VII. ARGUMENT

A. Timeliness.

The complaint was filed herein on August 13, 2015. A motion for preliminary

injunction was filed by Plaintiffs on August 28, 2015, was subsequently denied and

appealed. The motion to intervene was filed on November 25, 2015 and denied on

November 13, 2015. Proceedings in the District Court have been stayed pending

appeal. This motion is timely.

Nai Aupuni argued below that INTERVENORS’ challenge should have been

made earlier, in 2011 when Act 195 was enacted or in early 2015 when OHA

provided funds to Nai Aupuni. There is no doubt that INTERVENORS’ claims might

have been brought earlier. The question here is whether it is too late.

As long as one’s constitutional rights are being violated, it is never to late to

complain. This is a continuing wrong and it is never too late to seek redress. The

statute of limitations will never run out as long as the wrong continues. Even after the

Hawaiian governing entity is created, it will not be too late to complain that it violates

INTERVENORS’ rights to equal protection.


14

Clearly, a declaration that this entity or use of the Roll to create another such

entity violates INTERVENORS’ rights to equal protection would invalidate the

recognition given such entity by H.R.S. § 10H-1. Clearly, it is not too late to prevent

the expenditure of some of the § 5(f) funds that have been appropriated for Nai

Aupuni as presumably not all of the money has been spent. More money will be spent

on a ratification election. A very large amount of money is going to be spent in legal

fees defending this entity. It is certainly not to late to recover money that has been

spent, if any, in violation of § 5(f).The intervention is timely.

B. Significantly Protectable Interest..

INTERVENORS seek to intervene in this action as Defendants to assert a

cross-claim against the other Defendants to challenge the State’s authority to establish

a “Sovereign Hawaiian Entity” without a blood quantum limited to not less than one-

half part of the blood of the races inhabiting the Hawaiian Islands prior to 1778.

INTERVENORS would allege that the creation of such entity to represent native

Hawaiians without a blood quantum is a violation of their right to Equal Protection

and that expenditure of § 5(f) income and proceeds to do so is a violation of the § 5(f)

trust. Indeed, it would appear that the State intends to transfer Hawaiian home lands

to the Entity, no doubt in exchange for a release of the State from any further duty to

implement HHCA under the § 4 Admission Act compact.

INTERVENORS attempted to raise a similar Equal Protection claim in Arakaki


15

v. Cayetano, supra, and Kahawaiolaa v. Norton, supra. In Norton, INTERVENORS

were claiming that they were denied equal protection under the Fifth Amendment by

the United States in depriving them of the right to organize as an Indian tribe. The

Ninth Circuit held that “native Hawaiian” was not a racial classification but rather a

political classification. The facts that the United States had never dealt directly with

native Hawaiians, but rather with the Kingdom of Hawaii, which was not a native

tribe and that Congress had provided benefits to native Hawaiians under HHCA and

§ 5(f) of the Admission Act, was a sufficient rational basis to justify the

discrimination.

However, the Ninth Circuit severely criticized the Department of the Interior

for neglecting native Hawaiians, as follows:

Although we conclude that the Department of Interior’s exclusion of

Hawaiians passes constitutional muster, we recognize that, in many

ways, the result is less than satisfactory. We would have more

confidence in the outcome if the Department of Interior had applied its

expertise to parse through history and determine whether native

Hawaiians, or some native Hawaiian groups, could be acknowledged on

a government-to-government basis. It would have been equally rational,

if perhaps not more so, for the Department to have decided to undertake

that inquiry in the first instance. However, under equal protection

rational basis review, it is not for us “to judge the wisdom, fairness, or

logic” of the choices made. Heller, 509 U.S. at 319, 113 S.Ct. 2637

(quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113

S.Ct. 2096, 124 L.Ed.2d 211 (1993)). Thus, in the end, we must commit

this question to Congress to apply its wisdom in deciding whether or not

native Hawaiians should be included among those eligible to apply for

federal tribal recognition.

Kahawaiolaa v. Norton, supra, 386 F.3d at 1283.


16

Of course, the State of Hawaii and OHA have for many years attempted

without success to persuade Congress to establish a government-to-government

relationship with Hawaiians (without any blood quantum) through the so-called

Akaka Bill. Having failed in this effort, the State is now attempting to create its own

government-to-government relationship with Hawaiians (without any blood

quantum).

However the lack of any blood quantum as a qualification for voting and

membership in this State created Hawaiian governmental entity is a violation of

INTERVENORS’ right to equal protection under the Fourteenth Amendment to the

U.S. Constitution.

All other native Americans have the right under federal law to determine for

themselves the qualifications for membership in their tribal entities. In order to apply

for tribal recognition under the Indian Reorganization Act, “Indian” is defined as

follows:

The term “Indian” as used in this Act shall include all persons of Indian

descent who are members of any recognized Indian tribe now under

Federal jurisdiction, and all persons who are descendants of such

members who were, on June 1, 1934, residing within the present

boundaries of any Indian reservation, and shall further include all other

persons of one-half or more Indian blood. For the purposes of this Act,

Eskimos and other aboriginal peoples of Alaska shall be considered

Indians. The term “tribe” wherever used in this Act shall be construed

to refer to any Indian tribe, organized band, pueblo, or the Indians

residing on one reservation. The words “adult Indians” wherever used

in this Act shall be construed to refer to Indians who have attained the

age of twenty-one years.


17

25 U.S.C. § 479.

Since persons applying for recognition as an Indian tribe are, by definition, not

members of a recognized Indian tribe, the only Indians who can apply for recognition

are “persons of one-half or more Indian blood.” This is the exact same blood quantum

as the “not less than one-half part of the blood” definition of “native Hawaiian” which

the State ignores in the establishment of this “Hawaiian” governmental entity. This

discrimination is a violation of INTERVENORS’ right of equal protection as

protected by the Fourteenth Amendment to the U.S. Constitution. It is this right to

equal protection that INTERVENORS’ seek to assert. There is no compelling

governmental interest for this discrimination nor even a rational basis for it.

In Rice v. Cayetano, Rice v. Cayetano, 528 U.S. 495 (2000), the State

attempted to justify the restriction of voting rights for OHA Trustees to Hawaiians

(without a blood quantum) was justified by analogy to Indian tribes under Morton v.

Mancari, 417 U.S. 535 (1974). The Supreme Court rejected this argument holding

that OHA Trustees are state officials not of a quasi-sovereign native American

governing entity. Rice v. Cayetano, supra, 528 U.S. at 520. Justices Breyer and

Souter in a separate concurring opinion would have rejected the Indian analogy

argument based on the fact that the lack of a blood quantum in the voting

requirements for OHA did not resemble an Indian tribe:

As importantly, the statute defines the electorate in a way that is not

analogous to membership in an Indian tribe. Native Hawaiians,


18

considered as a group, may be analogous to tribes of other Native

Americans. But the statute does not limit the electorate to native

Hawaiians. Rather it adds to approximately 80,000 native Hawaiians

about 130,000 additional “Hawaiians,” defined as including anyone with

one ancestor who lived in Hawaii prior to 1778, thereby including

individuals who are less than one five-hundredth original Hawaiian

(assuming nine generations between 1778 and the present). See Native

Hawaiian Data Book 39 (1998). Approximately 10% to 15% of OHA’s

funds are spent specifically to benefit this latter group, see Annual

Report 38, which now constitutes about 60% of the OHA electorate.

* * *

Of course, a Native American tribe has broad authority to define its

membership. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72, n. 32

(1978). There must, however, be some limit on what is reasonable, at the

least when a State (which is not itself a tribe) creates the definition. And

to define that membership in terms of 1 possible ancestor out of 500,

thereby creating a vast and unknowable body of potential members —

leaving some combination of luck and interest to determine which

potential members become actual voters — goes well beyond any

reasonable limit. It was not a tribe, but rather the State of Hawaii, that

created this definition; and, as I have pointed out, it is not like any actual

membership classification created by any actual tribe.

Rice v. Cayetano, supra, at 526-7 [Breyer, J., Concurring].

In this case, INTERVENORS would be claiming that the Hawaiian

governmental entity, lacking a blood quantum, violates their Equal Protection rights

under the Fourteenth Amendment and expenditures of OHA funds in support of such

entity illegal entity is a breach of the § 5(f) trust.

In Arakaki v. Cayetano, supra, INTERVENORS attempted to intervene to

assert a similar equal protection claim as that asserted in Norton. In Arakaki, the

Plaintiffs were seeking to invalidate HHCA and § 5(f) as a denial of their right to

equal protection and to enjoin the State from using taxpayer monies to support the


19

HHCA and OHA programs. The District Court ruled that the Plaintiffs did not have

standing to challenge the validity of HHCA or § 5(f).

The District Court and Court of Appeals both ruled that INTERVENORS had

a significantly protectable interest to allow intervention. Id., at 1085-6.

Nai Aupuni argued below that INTERVENORS’ interest in this lawsuit is

“speculative.” This suit involves the expenditure of § 5(f) funds on a process to

establish a quasi-Indian tribe to represent “native Hawaiians” and “qualified Native

Hawaiians.” Plaintiffs seek the right as citizens of the State of Hawaii to vote in such

election. In the original proposed cross-claim, INTERVENORS were seeking to

prevent the election as being in violation of their rights. Based upon comments from

the bench during hearings to date, it became apparent that the Court is going to deny

the motion to intervene.

INTERVENORS subsequently amended their proposed crossclaim to seek that

the voting qualifications be restricted to “native Hawaiians.” Thus, INTERVENORS’

interest in this lawsuit is not speculative at all. INTERVENORS’ interest is exactly

the same as Plaintiffs. INTERVENORS and Plaintiffs are both seeking to amend the

voting qualifications for the entity. Plaintiffs seek to expand the qualifications.

INTERVENORS seek to restrict the qualifications. This is an issue that should

definitely be brought in one single suit. Indeed, if these issues were raised in two

separate suits, conflicting decisions might be reached. Plaintiffs might prevail in this


20

case and obtain a ruling that they should be allowed to vote, and INTERVENORS

might prevail in their case and obtain a ruling that not only Plaintiffs but most of the

Hawaiians on the present role should not be allowed to vote.

C. Imparement of Interest.

In Arakaki the District Court and Court of Appeals ruled that INTERVENORS’

interest in receiving benefits under HHCA and § 5(f) might have been impaired as the

result of Plaintiffs’ claims. Id., at 1086. Similarly, in this case, INTERVENORS’

interest in receiving benefits under § 5(f) will be impaired by the expenditure of § 5(f)

funds on an election that is illegal and violates their Equal Protection rights.

In Arakaki the District Court and Court of Appeals, held that INTERVENORS

Equal Protection claims would not be impaired by the claims raised by Plaintiffs and

that they could very well bring their own suit to assert those rights, which they did in

Norton. In this case, however, the Equal Protection claim is that the entity which

Defendants seek to produce is illegal. Therefore, expenditure of § 5(f) funds upon

such illegal election will impair INTERVENORS’ interest therein. The Equal

Protection claim is intimately intertwined within the breach of trust claim.

Rice v. Cayetano is an excellent example how disposition of this action may

impair their ability to protect their interest. Rice wanted to expand voting

qualifications for OHA trustees. The Hou Hawaiians might have wanted to restrict


21

voting for OHA trustees to native Hawaiians, but they were not parties. All they could

do was file an amicus brief arguing against the State (and therefore in favor of Rice).

Therefore, the Supreme Court did not even consider the possibility that it might have

been possible to restrict voting for OHA trustees only to native Hawaiians under

Morton v. Mancari, 417 U.S. 535 (1974).

Similarly, INTERVENORS in this case cannot obtain the relief they want in

a separate suit as this suit may establish a right on the part of Plaintiffs that conflicts

with INTERVENORS’ claim. INTERVENORS do not want Plaintiffs to be allowed

to vote. INTERVENORS do not want most of the Hawaiians on the present Roll to

be allowed to vote. INTERVENORS want voting limited to the actual beneficiaries

of the HHCA and § 5(f) trust.

D. Adequacy of Representation.

In Arakaki, the Court of Appeals listed the factors to be considered in

determining the adequacy of representation as follows:

This Court “follow[s] the guidance of Rule 24 advisory committee notes

that state that ‘if an absentee would be substantially affected in a

practical sense by the determination made in an action, he should, as a

general rule, be entitled to intervene.’” Southwest Center, 268 F.3d at

822 (citation omitted). As noted above, Hoohuli’s continued receipt of

benefits will cease altogether should Plaintiffs prevail. Hoohuli would

be justified in intervention to protect the continued receipt of benefits if

it demonstrates that existing parties do not adequately protect its

interest. Donnelly, 159 F.3d at 409. The burden on proposed

INTERVENORS in showing inadequate representation is minimal, and


22

would be satisfied if they could demonstrate that representation of their

interests “may be” inadequate. Trbovich v. United Mine Workers, 404

U.S. 528, 538 n. 10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972).

This Court considers three factors in determining the adequacy of

representation: (1) whether the interest of a present party is such that it

will undoubtedly make all of a proposed intervenor’s arguments; (2)

whether the present party is capable and willing to make such

arguments; and (3) whether a proposed intervenor would offer any

necessary elements to the proceeding that other parties would neglect.

California v. Tahoe Reg’l Planning Agency, 792 F.2d 775, 778 (9th Cir.

1986).

Arakaki v. Cayetano, supra, at 1086.

In applying these factors, the Arakaki court concluded that the State of Hawaii

could adequately represent INTERVENORS. However, applying these factors to the

present case makes it clear that none of the existing parties can adequately represent

INTERVENORS’ interest.

Nai Aupuni argued below that Plaintiffs were seeking to prevent the election

and that is the same thing that INTERVENORS want and that Plaintiffs, therefore,

can adequately represent INTERVENORS’ interest.

But, perhaps, Nai Aupuni misconstrued Plaintiffs’ interest, as well as

INTERVENORS’. Nai Aupuni stated that “Plaintiffs clearly seek enjoinment of ‘the

calling, holding, or certifying of any election utilizing the Roll[.]’” Nai Aupuni

interpreted this as meaning that Plaintiffs seek to prevent the election. But this

ignores “using the Roll.” More appropriately, Plaintiffs were seeking to participate


23

in the election and only prevent the use of the Roll which excludes them.

INTERVENORS originally sought to prevent the election utilizing the Roll.

However, in light of the Court’s ruling on Plaintiff’s motion for injunction,

INTERVENORS no longer seek to prevent Nai Aupuni’s election. INTERVENORS

seek to enjoin the use of § 5(f) funds to create this illegal entity . Nai Aupuni should

not be permitted to use § 5(f) funds for creation of an illegal entity. INTERVENORS

are seek to enjoin the use of § 5(f) funds for such illegal purpose in breach of the §

5(f) trust.

In any event, if Plaintiffs are successful in obtaining the right to participate in

the creation of this illegal quasi-Indian tribe, INTERVENORS’ rights to equal

protection will be violated just as much, if not more, than by using the Roll. Plaintiffs

do not represent INTERVENORS. Plaintiffs do not seek to limit the Roll to native

Hawaiians. Plaintiffs do not seek to enjoin the use of § 5(f) funds for the election

using the present Roll with no blood quantum. That is why INTERVENORS do not

seek to intervene as Plaintiffs. INTERVENORS INTERVENORS are opposed to the

non-Hawaiian Plaintiffs’ desire to participate in the creation of an entity to represent

them vis-a-vis the State of Hawaii with regard to the ownership, possession, use [and

funding] of Hawaiian Home Lands.


24

E. INTERVENORS’ claims are not precluded by res judicata.

In denying the motion to intervene, the District Court ruled that

INTERVENORS claims herein are precluded by the court rulings in Day v. Apoliona,

451 F.Supp. 2d 1133, 1146 (D. Haw. 2006) and Kealoha v. Machado, 131 Haw. 62,

78-79, 315P.3d 213, 229-30 (2013). This is an issue that was not raised by opposing

parties in the Court below and one where INTERVENORS should have been given

the opportunity to present evidence in opposition. Nevertheless, res judicata does not

apply because, while the parties may have been the same as INTERVENORS herein,

the issues were completely different. Res judicata should not have been an issue.

VIII. CONCLUSION.

Based upon the foregoing authorities and argument, intervention as a matter

of right is appropriate in this case. The motion to intervene should have been granted.

The order denying the motion should be reversed and the matter remanded for further

proceedings.

Dated: Honolulu, Hawaii, March 21, 2016.

/s/ Walter R. Schoettle

WALTER R. SCHOETTLE,

Attorney for INTERVENORS


25

STATEMENT OF RELATED CASES

This appeal from an order denying motion to intervene in Akina v. State of

Hawaii, D.C. No. 1:15-CV-00322-JMS-BMK, in the U.S. District Court for the

District of Hawaii is related to an appeal from an order denying preliminary

injunction from the same case, being Akina v. State of Hawaii, CA No. No. 15-17134.

Dated: Honolulu, Hawaii, March 21, 2016.

/s/ Walter R. Schoettle

WALTER R. SCHOETTLE,

Attorney for INTERVENORS


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