In the United States Court of Appeals for the Ninth Circuit

Home , List of Native Hawaiians, Peter Kirsanow

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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 15-17134

KELI’I AKINA, KEALII MAKEKAU, JOSEPH KENT, YOSHIMASA SEAN MITSUI, PEDRO KANA’E GAPERO, and MELISSA LEINA’ALA MONIZ, Plaintiffs-Appellants, v. THE STATE OF HAWAII; GOVERNOR DAVID Y. IGE, in his official capacity; ROBERT K. LINDSEY JR., Chairperson, Board of Trustees, Office of Hawaiian Affairs, in his official capacity; COLETTE Y. MACHADO, PETER APO, HAUNANI APOLIONA, ROWENA M.N. AKANA, JOHN D. WAIHE’E IV, CARMEN HULU LINDSEY, DAN AHUNA, LEINA’ALA AHU ISA, Trustees, Office of Hawaiian Affairs, in their official capacities; KAMANA’OPONO CRABBE, Chief Executive Officer, Office of Hawaiian Affairs, in his official Capacity; JOHN D. WAIHE’E III, Chairman, Native Hawaiian Roll Commission, in his official Capacity; NĀ’ĀLEHU ANTHONY, LEI KIHOI, ROBIN DANNER, MĀHEALANI WENDT, Commissioners, Native Hawaiian Roll Commission, in their official capacities; CLYDE W. NĀMU’O, Executive Director, Native Hawaiian Roll Commission, in his official capacity; THE AKAMAI FOUNDATION; and THE NA’I AUPUNI FOUNDATION, Defendants-Appellees.

PLAINTIFFS-APPELLANTS’ REPLY IN SUPPORT OF THEIR URGENT MOTION FOR AN INJUNCTION WHILE APPEAL IS PENDING

On Appeal from the United States District Court for the District of Hawaii Civil No. 15-00322 JMS-BMK

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NING LILLY & JONES MICHAEL A. LILLY #1681 707 Richards Street, Suite 700 Honolulu, Hawaii 96813 Telephone: (808) 528-1100 Facsimile: (808) 531-2415 Email: [email protected]

JUDICIAL WATCH, INC ROBERT D. POPPER PAUL J. ORFANEDES 425 Third Street, SW Washington, DC 20024 Telephone: (202) 646-5172 Facsimile: (202) 646-5199 Email: [email protected]

LAW OFFICE OF CHRISTOPHER COATES CHRISTOPHER COATES 934 Compass Point Charleston, South Carolina 29412 Telephone: (843) 609-080 Email: [email protected]

Attorneys for Plaintiffs-Appellants

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TABLE OF CONTENTS Introduction ...... 1 Argument...... 1 I. The Relief Appellants Seek Is Appropriate For an Unlawful Election ...... 1

II. The Undisputed Facts Establish State Action ...... 2

A. There is State Action Under the Public Function Test ...... 6

B. There Is Joint Action ...... 8

III. The District Court’s Theory of Compelling Justification is Unprecedented and Legal Error ...... 9

IV. Appellants Have Suffered a Significant Constitutional Injury Warranting an Injunction ...... 10

Conclusion ...... 10

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TABLE OF AUTHORITIES

CASES PAGE Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014) ...... 10 Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967) ...... 1 Bush v. Gore, 531 U.S. 1046 (2000) ...... 1 Cab Operating Corp. v. City of N.Y., 243 F. Supp. 550 (S.D.N.Y. 1965) ...... 2 Davis v. Guam, 785 F.3d 1311 (9th Cir. 2015) ...... 7 Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978) ...... 2 Hadnott v. Amos, 394 U.S. 358 (1969) ...... 1 Hamer v. Campbell, 358 F.2d 215 (5th Cir. 1966) ...... 1-2 Morse v. Republican Party of Va., 517 U.S. 186 (1996)...... 8 Ohno v. Yasuma, 723 F.3d 984 (9th Cir. 2013) ...... 8, 9 Roe v. Mobile Cnty. Appointing Bd., 904 F. Supp. 1315 (S.D. Ala. 1995) ...... 2 Southwest Voter Reg. Ed. Project v. Shelley, 344 F.3d 914 (9th Cir. 2003) ...... 1 Terry v. Adams, 345 U.S. 461 (1953) ...... 6

STATUTES, RULES, AND REGULATIONS

Fed. R. Evid. 401(a) ...... 4 Haw. Rev. Stat. § 10-17(a) ...... 5 Haw. Rev. Stat. § 10-2 ...... 5 Haw. Rev. Stat. § 10H-4(b) ...... 5

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Appellants submit this reply in further support of their urgent motion for an injunction while an appeal is pending.1

I. The Relief Appellants Seek Is Appropriate For an Unlawful Election.

OHA argues that the remedy Appellants seek involves “enjoining an election that is already under way.” OHA Opp. At 17, citing Southwest Voter Reg. Ed.

Project v. Shelley, 344 F.3d 914, 919 (9th Cir. 2003) (en banc) (“interference with an election after voting has begun is unprecedented”). But that incorrectly characterizes the relief Appellants request.

Appellants do not seek to enjoin the ongoing process of voting, that is, the casting or collection of ballots. Rather, Appellants are requesting a post-election remedy, enjoining the counting of any ballots and the subsequent declaration of winners. Courts have issued many kinds of post-election relief regarding unlawful elections, from enjoining the counting of ballots or the publishing of results to the voiding of elections and the ordering of new elections.2

1 Office of Hawaiian Affairs Appellees are referred to herein as “OHA” and Docket Entry 19-1 as “OHA Br.”; State Appellees are referred to as such and Docket Entry 22 as “State Br.”; and Na’i Aupuni is referred to as NA and Docket Entry 23-1 as “NA Br.” 2 See Bush v. Gore, 531 U.S. 1046, 1047 (2000) (Scalia, J, concurring) (staying a hand-count of ballots “of questionable legality” was better than “[c]ount[ing] first, and rul[ing] upon legality afterwards”); Hadnott v. Amos, 394 U.S. 358, 367 (1969) (ordering officials “promptly to conduct a new election” where candidates were excluded because of race); Bell v. Southwell, 376 F.2d 659, 661, 665 (5th Cir. 1967) (appropriate remedy for overt acts of discrimination was “setting aside the election and requiring the calling of a special election”); Hamer v. Campbell, 358 F.2d 215,

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II. The Undisputed Facts Establish State Action.

Appellees say little to dispute the basic facts Appellants rely on to show that the election NA is undertaking is state action. Indeed, Appellees ultimately dispute only one fact – and even that one only in part.

Except for the autonomy clause in the Grant Agreement upon which they rely, neither Appellees nor the United States mention, in 80 pages of opposition briefs, any of the other interrelated contractual provisions – including the recitals,

Whereas clauses, incorporations by reference, and special rights reserved to OHA

– that tie NA to OHA, and to OHA’s statutory purpose of carrying out Act 195.

See Mot. at 6, 7-9. Appellees fail to mention that Dr. Asam publicly stated that

“Na’i Aupuni exists for one reason, which is to establish a path to a possible reorganized Hawaiian government.” Ex. E at 187, ¶ 14(b). Appellees concede that

NA was formed in December 2014, just a few months before those contracts were signed, and NA concedes that its own bylaws refer to OHA’s purpose “of enabling

222 (5th Cir. 1966) (district court erred in failing to enjoin discriminatory city election, and “we now must set it aside in order ‘to grant appellants full relief in the same manner as if the said election had been enjoined.’”) (citation omitted); Griffin v. Burns, 570 F.2d 1065, 1069, 1080 (1st Cir. 1978) (district court was right to invalidate a “primary, postpone the general election, and schedule a new primary,” where absentee ballots were improperly rejected); Roe v. Mobile Cnty. Appointing Bd., 904 F. Supp. 1315, 1336 (S.D. Ala. 1995) (permanently enjoining Secretary of State from counting contested absentee ballots); Cab Operating Corp. v. City of N.Y., 243 F. Supp. 550, 560 (S.D.N.Y. 1965) (enjoining “canvassing or counting the votes cast” and “reporting, announcing or publishing” the results where City held election preempted by federal labor law).

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Native Hawaiians to participate in self-governance.” NA Br. at 12.

NA admits (id. at 13) that “prior to entering into” any contract or grant agreement, “NA informed OHA that it intended to use the [race-based] Roll” to conduct the election. Mot. at 6, citing Ex. L, ¶ 13; Ex. M, ¶ 20. (The State and

OHA Appellees fail to discuss this fact at all.) Thus, the “autonomy provision” must be understood in light of the crucial fact that OHA knew what NA planned to do before signing the Grant Agreement. This reveals the autonomy provision for what it is: a sham, inserted for the sake of appearances in the event of future litigation, and not a bona fide grant of independence. It was clear error for the district court to fail to recognize this.

NA does vigorously dispute that OHA is an ex officio member of NA, arguing that Appellants “purposefully conflate NA with a ‘consortium’ that was described in OHA’s minutes.”3 NA Br. at 12 n. 6. The problem for NA is that the minutes of OHA’s board meeting refer to a “Consortium, now calling themselves

Na’i Aupuni,” and then state, in the same paragraph, that “[t]he Consortium is an autonomous and independent only [sic], with OHA providing funding and sitting as an ex officio member.” Ex. K at 1111. This suggests that the consortium is NA, and thus that OHA is a member of NA. However, even if the unsworn statement of NA’s counsel during oral argument – that this was referring to a “loose

3 NA’s hyperbolic reference to “some outright falsehoods” alleged by Appellants appears to be referring to this issue. NA Br. at 11.

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organization” that “preceded” NA (Ex. S at 83) – were fully credited, the Court should not be distracted by this point. It remains undisputed that OHA was an ex officio member of the predecessor consortium, which is in itself a remarkable fact establishing OHA’s influence on NA during its formation.

Appellees do not dispute that the Vice-President of NA is married to the

Executive Director of the NHRC, the state agency that created the Roll. However,

Appellees respond indignantly, even intemperately, to the raising of this issue, with

State Appellees calling it “character assassination” and “profoundly insulting.”

State Br. at 10. It is no such thing. Evidence is relevant if it is material and “it has any tendency to make a fact more or less probable than it would be without the evidence.” F.R.E. 401(a). Appellants have alleged that, in its conduct of the disputed election, NA is acting in concert with agencies of the State of Hawaii, and that any claim that NA is acting on its own is merely for the sake of appearances.

In this light, it certainly is relevant that an officer of NA is the spouse of an officer of the state agency that compiled the disputed registration list of Native Hawaiians.

NA’s primary response to the facts cited by Appellants is not to contradict them, but to cite in turn Dr. Asam’s testimony that NA made the decision to use the Roll on its own and did not feel compelled to do so by Act 195. NA Br. at 11,

13. But Dr. Asam is the President of Defendant NA, the recipient of a $2.6 million grant from OHA. He was present, moreover, for discussions with OHA’s board on

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how to avoid constitutional challenges, at which the participants expressed their view that NA must claim to be independent. Ex. K at 1111-1115; see also Ex. E at

188, ¶ 15(a) (Dr. Asam discussing how to “withstand a 14th Amendment challenge”). Crediting this self-interested testimony, given all the other facts showing that NA is acting in concert with OHA, and given Dr. Asam’s full awareness of a pre-planned litigation strategy, is clearly erroneous.

More fundamentally, neither OHA nor NA has the discretion to ignore the provisions of Act 195. The Act states that the Native Hawaiian rolls created by the

NHRC “shall serve as the basis for the eligibility of qualified Native Hawaiians . . . to participate in the organization of the Native Hawaiian governing entity.” HAW.

4 REV. STAT. § 10H-4(b) (emphasis added). The Act uses the mandatory “shall,” not the precatory “may.” Notwithstanding this clear language, State Appellees argue that this language is merely “precatory” and “aspirational.” State Br. at 9 & n. 2. NA goes so far as to contend that it is not controlled by the mandates of Act

195. NA Br. at 3. NA cites no authority for the proposition that a Hawaiian

4 Furthermore, Hawaii law provides that all grants by OHA “shall be used for activities that are consistent with the purposes of this chapter.” HAW. REV. STAT. § 10-17(a)(6). A “grant” is defined as “an award of funds by the office to a specified recipient to support the activities of the recipient that are consistent with the purposes of this chapter.” HAW. REV. STAT. § 10-2. Thus, all of OHA’s grants must further OHA’s public purpose. The grant to NA must do so as well. This means that OHA cannot allow NA to use its grant for wholly private purposes or give it complete discretion as to how to conduct the election. The district court abused its discretion in failing to recognize this point of law.

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agency can avoid a mandatory directive in Hawaiian law by delegating its duties to private entities who then claim they are not bound by State law.

The facts clearly establish state action under the applicable tests, and it was clear error for the district court to conclude otherwise.

A. There is State Action Under the Public Function Test.

In Terry v. Adams, 345 U.S. 461 (1953), the Court held that the Fifteenth

Amendment established a right “not to be discriminated against as voters in elections to determine public governmental policies or to select public officials.”

Id. at 467 (emphasis added). Accordingly, “the Amendment includes any election in which public issues are decided or public officials selected.” Id. at 468

(emphasis added). The election may alter the governmental status of hundreds of thousands of Hawaiians. This is an election “to determine public governmental policies” and “to decide public issues.”

OHA argues that the “election in Terry was a primary for public officials”

(OHA Br. at 9), but that is simply wrong. The election in Terry was for the Jaybird party, a private organization.5 The winner then ran in the Democratic primary – and only then in the general election. Id. at 462, 463. Appellees argue that the challenged election is not being conducted by the Hawaii Office of Elections

(OHA Br. at 9, NA Br. at 9) – but neither were the Jaybird elections run by state

5 The Jaybirds had existed, moreover, since 1889 (id. at 463), in contrast to NA, which was created in December 2014 for the purposes of this one election.

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officials. NA notes correctly that this is not a “regularly scheduled” election – but neither was the election in Davis v. Guam, 785 F.3d 1311 (9th Cir. 2015), which, in fact, may never occur.

Appellees’ attempts to distinguish this case from the principle of Davis are also unavailing. NA argues that the Davis plebiscite was pursuant to a law passed by Guam’s legislature (NA Br. at 10); yet the election here similarly was prescribed by Hawaii’s Act 195.6 NA adds that Guam’s plebiscite results (if it ever were held) would be sent to the President, Congress, and the United Nations. Id.

But, as Dr. Asam explained, this election “is concerned with ‘possible nationhood’ for Native Hawaiians” – and convention delegates likewise might take any plans they developed directly to the United Nations. Ex. E, 187-88, ¶¶ 14(i), 15(b).

More basically, all Appellees mischaracterize Davis as merely a “standing” case. NA Br. at 9; State Br. at 5; OHA Br. at 11. That is far too facile a treatment of that ruling. If it is a constitutional injury to be excluded from an election that

“make[s] it more likely” that a governance relationship will be altered (785 F.3d at

1315), then the conduct of such an election must be considered to be a “public

6 OHA’s argument that Act 195 does not specify “any particular election” is particularly hollow. OHA Br. at 4. Clearly, an election was anticipated, whenever it might be held. State Appellee’s suggestion that the Roll is comparable to the collection of census data is preposterous. State Br. at 9. Census takers do not decide who is eligible to vote in any particular election. Act 195 does.

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function.” See also Morse v. Republican Party of Va., 517 U.S. 186, 198-200,

207-213 (1996).

OHA’s assertion that Appellants do not explain “how the election will affect huge numbers of Americans” (OHA Br. at 12) is simply baffling. Placing between one-fifth and one quarter of Hawaii’s population under the jurisdiction of a new governmental entity will change the lives of all Hawaiians. Further, the United

States confirms that this election will, under its proposed rules, constitute the first step in a process leading to a Native Hawaiian entity. U.S. Amicus Br. at 5-6.

B. There Is Joint Action.

The undisputed facts described above concerning, among other things,

OHA’s involvement with NA in its formation, OHA’s contractual involvement with NA, OHA’s provision of funds to NA to accomplish OHA’s legislative mandates, and NA’s advance promise to use the Roll, amply establish joint action.

See Ohno v. Yasuma, 723 F.3d 984, 996 (9th Cir. 2013) (joint action for government to “authorize[], encourage[], or facilitate[] unconstitutional conduct” or to “insinuate[] itself into a position of interdependence” with a private actor).

At oral argument, the district court suggested that “if this is purely private funded it doesn't matter how important it is.” Ex. S at 126. Counsel for Appellants responded that “in a way the public funding is a red herring. You know, it’s not public action because it’s public funded. . . . We never said it was the test, we

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never will say it’s the test.” Id. at 126-27. Appellees have variously mischaracterized this exchange,7 and have basically taken it to mean that funding is conceded to be irrelevant. But Appellants’ counsel did not say that, and that is not the law. As Ohno makes clear, where the government “encourages, or facilitates unconstitutional conduct” there may be joint action. 723 F.3d at 926. Certainly the provision of $2.6 million in funds – not as a bona fide purchase, but as a grant, with as Dr. Asam stated, “no strings attached” (Ex. E at 188) – facilitated the unconstitutional race-based election taking place now.

III. The District Court’s Theory of Compelling Justification is Unprecedented and Legal Error.

Appellants pointed out that their counsel knew of no other case in American law where a compelling justification was found to satisfy strict scrutiny so as to warrant racial discrimination in voting. In their 80 pages of briefing, Appellees have failed to cite such a case. The district court’s ruling is unprecedented.

Appellees’ arguments that there are “countervailing considerations” – specifically, the intention to promote self-determination for Native Hawaiians,8 and the free association rights of those Native Hawaiians – that justify rejecting a finding of state action are similarly unprecedented. Appellees cite no case where

7 State Appellees’ account is the most misleading, when they say “Plaintiffs expressly abandoned their funding argument.” State Br. at 6. Plaintiffs never advanced a “funding argument.” 8 This particular justification is also factually inadequate. See Heriot Decl., attached as Ex. V.

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such considerations were found to justify racial discrimination in voting or, for that matter, in any other context.

Finally, the argument that registrants could have avoided affirming

Declaration One (e.g., NA Br. at 16-17) does not establish that the registration process for the Roll was narrowly tailored, when 38% of those on the Roll were compelled to affirm that declaration.

IV. Appellants Have Suffered a Significant Constitutional Injury Warranting an Injunction.

Appellants have been precluded from participating in a vote that Appellees’ own counsel described as “historic” and as involving the “public interest.” The potential ramifications and consequences of this vote are staggering. And

Appellants are being denied this opportunity to participate because of their race.

The other factors necessary to obtain an injunction thus favor Appellants. See

Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014) (“by establishing a likelihood that Defendants’ policy violates the U.S. Constitution,

Plaintiffs have also established that both the public interest and the balance of the equities favor a preliminary injunction”).

CONCLUSION

Appellants respectfully request that this Court enjoin the counting of ballots in the ongoing election and the certification or publication of results.

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DATED this 13th day of November, 2015.

/s/ Robert D. Popper ROBERT D. POPPER Attorney for Plaintiffs-Appellants

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GAIL HERIOT

Office Address: University of San Diego School of Law 5998 Alcala Park San Diego, California 92110 Telephone: (619) 260-2331 E-Mail: [email protected]

EXPERIENCE:

Professor of Law, University of San Diego School of Law 1989 - present (promoted to full professor in 1993) Courses: Civil Rights Law & History, Employment Discrimination, Foundations of Contract, Property & Tort (Seminar), Legislation in the Modern Administrative State, Products Liability, Remedies, Torts

Commissioner, United States Commission on Civil Rights 2007 - present

Associate Dean for Academic Affairs & Professor of Law, George Mason University School of Law 1998 - 1999 Duties: Faculty administrator in charge of faculty and academic programs. (Held position while on leave from the University of San Diego).

Counsel, United States Senate Committee on the Judiciary Spring Semester 1998 Duties: Advised Committee Chairman Senator Orrin G. Hatch on civil rights issues and judicial nominations. (Held position while on leave from the University of San Diego).

Associate, Hogan & Hartson, Washington, D.C. 1984-1989 Duties: Litigated pharmaceutical products liability, securities, and intellectual property cases in federal and state courts at trial and appellate levels.

Associate, Mayer, Brown & Platt, Chicago, Illinois 1982- 1983 Duties: General litigation and commercial practice.

Law Clerk, The Honorable Seymour F. Simon, Supreme Court of Illinois 1981 – 1982

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SELECTED ACADEMIC & PROFESSIONAL PUBLICATIONS:

A Dubious Expediency: How Race-Preferential Admissions Policies Hurt Minority Students, Heritage Foundation White Paper (forthcoming 2015).

Online Symposium on Richard Epstein’s The Classical Liberal Constitution: The Uncertain Quest for Limited Government: Due Deference to the Political Branches, Library of Law & Liberty (March 17, 2014).

Online Schuette Symposium: The Parade of Horribles Lives, SCOTUSBlog (September 13, 2013).

Fisher v. University of Texas: The Court (Belatedly) Attempts to Invoke Reason and Principle, 2012-13 Cato Sup. Ct. Rev. 63 (2013)

The Sad Irony of Affirmative Action, National Affairs (Winter 2013).

Sleeping Giant: Section Two of the Thirteenth Amendment, Hate Crimes Legislation, and Academia’s Favorite New Vehicle for the Expansion of Federal Power, Engage (December 2012)(with Alison Somin).

Online Fisher symposium: Is the era of race-preferential admissions drawing to a close?, SCOTUSBlog (September 5, 2012)(with John Eastman).

Affirmative Action for Men? Strange Silences and Strange Bedfellows in the Public Debate Over Discrimination Against Women in College Admissions, Engage (November 2011)(with Alison Somin).

Want to be Doctor? A Scientist? An Engineer? An Affirmative Action Leg Up May Hurt Your Chances, 11 Engage 18 (December 2010).

Disparate Impact and the Soft Coercion of the Uniform Guidelines on Employee Procedures, SCOTUSBlog (February 23, 2010).

Lights! Camera! Legislation!: Grandstanding Congress Set to Adopt Hate Crimes Bill that May Put Double Jeopardy Protections in Jeopardy, 10 Engage 4 (February 2009).

Affirmative Action in American Law Schools, 17 J. Contemp. Legal Issues 237 (2008)(symposium issue).

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Parents Involved in Community Schools v. Seattle School District No. 1, in Oxford Guide To United States Supreme Court Decisions (Kermit L. Hall, James W. Ely, Jr. Joel B. Grossman, eds.)(2d ed. 2008).

The Equal Rights Amendment: Back for an Encore Performance? Engage Magazine 29 (February 2008).

Book Review: Jerome Karabel’s The Chosen, Engage Magazine 153 (February 2007).

Are Bloggers Following in the Footsteps of Publius? (And Other Musings on Blogging by Legal Scholars), 84 Wash. U.L.Q. 1113 (2006)(symposium issue).

Aloha, Akaka Bill, Engage Magazine 43 (October 2006).

In Recent Decades, The Confirmation Process Has Been Time Consuming and Sometimes Bitter and Partisan, But It’s Unlikely to Get Better as Long as Justices Are Perceived as Policymakers, San Diego Lawyer Magazine (January-February 2006).

Misdiagnosis: A Comment on “Illness and Injury as Contributors to Bankruptcy” and the Media Publicity Surrounding It, 10 Tex. Rev. L. & Politics 229 (2005).

Comment: Traditionalism and Rationalism in the Courts, 42 San Diego L Rev. 1103 (2005)(symposium issue).

Taking the Michigan Cases Seriously: Thoughts on Grutter v. Bollinger and Gratz v. Bollinger as Law and Practical Politics, 36 Loy. (Chi.) L.J. 137 (2004)(symposium issue).

Symposium on Direct Democracy: An Introduction, 13 J. Contemp. Legal Issues 1 (2004).

Standardized Tests Under the Magnifying Glass: A Defense of the LSAT Against Recent Charges of Bias, 7 Tex. Rev. L. & Politics 467 (2003) (with Christopher T. Wonnell).

Civilizing Punitive Damages: Lessons from Restitution, 36 Loy. (L.A.) L. Rev.869 (2003)(symposium issue).

Strict Scrutiny, Public Opinion and Racial Preferences on Campus: Should the Courts Find a Narrowly Tailored Solution to a Compelling Need in a Policy Most Americans Oppose?, 40 Harv. J. Legis. 219 (2003).

Symposium Introduction: Law School Admissions Reform, Academic Questions 18 (Winter 2001-02).

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The Politics of Admissions in California, Academic Questions 29 (Fall 2001).

The University of California Under Proposition 209, 6 Nexus 163 (2001) (symposium issue).

Book Review: Richard Epstein’s Re-Torts, 3 Green Bag 2d 219 (2000).

Book Review: Daniel A. Farber & Suzanna Sherry’s Beyond All Reason: The Radical Assault on Truth in American Law, Academic Questions 85 (Spring 1999).

California’s Proposition 209 and the United States Constitution, 43 Loyola (New Orleans) L. Rev. 613 (1998) (symposium issue).

Symposium on Law, Human Behavior and Evolution: An Introduction, 8 J. Contemp. Legal Issues 1 (1997).

An Essay on the Civil-Criminal Distinction With Special Reference to Punitive Damages, 7 J. Contemp. Legal Issues 43 (1996) (symposium issue).

Songs of Experience: A Review Essay of Anthony Kronman’s The Lost Lawyer: Failing Ideals of the Legal Profession, 81 Va. L. Rev. 1721 (1995).

The Practical Role of Harm in Criminal Law and the Law of Tort, 1 J. Contemp. Legal Issues 145 (1994) (symposium issue).

The New Feudalism: The Unintended Destination of Contemporary Trends in Employment Law, 28 Ga. L. Rev. 167 (1993).

A Study in the Choice of Form: Statutes of Limitation and the Doctrine of Laches, 1992 B.Y.U.L. Rev. 917 (1993).

Whether Pigs Have Wings, 38 Wayne L. Rev. 31 (1991).

Way Beyond Candor, 89 Mich. L. Rev. 1945 (1991).

SELECTED TESTIMONY BEFORE GOVERNMENTAL BODIES:

Testimony on the proposed Matthew Shepard Hate Crimes Prevention Act Before the Senate Committee on the Judiciary, June 25, 2009.

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Testimony on the proposed Native Hawaiian Government Reorganization Act Before the House of Representatives Committee on Natural Resources, June 11, 2009.

Testimony on the Fiftieth Anniversary of the Civil Rights Act of 1957 and Its Continuing Importance Before the Senate Committee on the Judiciary, September 5, 2009.

Testimony on the proposed Native Hawaiian Government Reorganization Act Before the United States Commission on Civil Rights, January 20, 2006.

Testimony on Judicial Activism Before the Subcommittee on the Constitution, Federalism and Property Rights, Committee on the Judiciary, United States Senate, July 15, 1997.

Testimony on the Civil Rights Act of 1997 (H.R. 1909) Before the Subcommittee on the Constitution, Judiciary Committee, United States House of Representatives, June 26, 1997.

Testimony on Diversity and the California Civil Rights Initiative Before the Judiciary Committee of the California Senate, September 30, 1996.

SELECTED COMMISSIONER STATEMENTS IN REPORTS OF THE UNITED STATES COMMISSION ON CIVIL RIGHTS:

Patient Dumping 59 (September 2014)

Sex Trafficking: A Gender-Based Violation of Civil Rights 65 (September 2014)

Criminal Background Checks and Disparate Impact 308 (December 2013)

Sexual Assault in the Military 161 (September 2013)

School Discipline and Disparate Impact 97 (April 2012).

Peer-to-Peer Violence + Bullying: Examining the Federal Response 181 (September 2011).

English Only Policies in the Workplace 92 (July 2011).

Healthcare Disparities 87 (December 2010).

Encouraging Minority Students to Pursue Science, Technology, Engineering and Math Careers 77 (October 2010).

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The Multiethnic Placement Act: Minorities in Foster Care and Adoption 137 (July 2010).

Minorities in Special Education 103 (April 2009).

Enforcing Religious Freedom in Prison 118 (September 2008)

Affirmative Action in Law Schools 148 (April 2007).

SELECTED NEWSPAPER AND MAGAZINE OPINION ESSAYS (LAST EIGHT YEARS):

Harassing the Military, The Weekly Standard (July 8, 2013).

Is it Discriminatory to Prohibit Discrimination?, The Daily Caller (July 11, 2011).

Opinion: Does Affirmative Action Help College Students?, AOLNews (December 24, 2010).

Congress Tries to Break Hawaii in Two, The Wall Street Journal, February 28, 2010 (with Peter Kirsanow).

Hate Bill Threatens Innocent, The Philadelphia Inquirer, July 22, 2009.

The ABA’s “Diversity” Diktat, The Wall Street Journal, April 28, 2008.

Affirmative Action Backfires, The Wall Street Journal, August 24, 2007.

Junk Social Science Index, The Washington Times, July 26, 2007 (with Todd Zywicki).

SELECTED ACADEMIC AND PROFESSIONAL SPEECHES AND DISCUSSIONS (LAST EIGHT YEARS):

Round Table Participant, Colloquium: The Rule of Law: Anglo-American versus Continental Conceptions in Theory and Practice, Liberty Fund, New Orleans (December 4- 6, 2014).

Speaker, Showcase Panel on Youth, Employment and the Law, National Lawyers Conference, Federal Society, Washington, D.C. (November 13, 2014)(text of remarks to be reprinted in the Harvard Journal of Public Policy (forthcoming)).

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Speaker, Panel on Passion and Prudence in the Political Process: The Debate Over Federal Civil Rights Policy, Conference on Civil Rights in the United States, The Cato Institute, the Federalist Society & the Heritage Foundation, Washington, D.C. (September 9, 2014).

Speaker, Panel on Best Admissions Practices: How to Address Underrepresented Populations in the Wake of Fisher v. University of Texas at Austin, Annual Conference, National Association of College & University Attorneys, Denver (June 24, 2014).

Speaker, Panel on Affirmative Action, National Convention, American Constitution Society, Washington, D.C. (June 20, 2014).

Speaker, Panel on Disparate Impact Analysis, Second Annual Executive Branch Review Conference, The Federalist Society, Washington, D.C. (May 7, 2014).

Debater, Does Affirmative Action on Campus Do More Harm than Good?, Intelligence Squared, Harvard University (February 27, 2014)(segments broadcast over National Public Radio).

Speaker, Fisher v. University of Texas in Constitution Day Symposium: The Supreme Court: Past and Prologue, The Cato Institute, Washington DC (September 17, 2013).

Speaker, Civil Rights in National Student Symposium: The Federal Leviathan: Is There Any Area of Modern Life to Which the Federal Government Power Does Not Extend?, Federalist Society, University of Texas, Austin, Texas (March 2, 2013).

Speaker, Race-Preferential Admissions Policies in Symposium: A Might Maze: Charting the Future of American Higher Education, National Association of Scholars, Harvard Club, New York, New York (March 1, 2013).

Speaker, Panel: Civil Rights: Who Benefits from Affirmative Action and Race and Gender Consciousness?, National Lawyers Conference, Federalist Society, Washington, D.C., November 16, 2012.

Round Table Participant, Colloquium: Liberty and the Logical Foundations of Constitutional Democracy: James Buchanan’s The Calculus of Consent after Fifty Years, Charlottesville, Va., September 27-29, 2012.

Round Table Participant, Colloquium: Liberty, Responsibility & the Legal Profession, Los Angeles, February 10-11, 2012.

Debate Participant, Fisher v. University of Texas: Are Campus Racial Preferences Out of Control?, The Heritage Foundation, Washington, D.C., December 16, 2011.

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Debate Participant, The Matthew Shepard Hate Crimes Prevention Act, Federalist Society Student Chapter, Yale University, March 10, 2010.

Socratic Dialogue Participant, Beyond Black & White, Fred Friendly Seminars, Kaiser Permanante National Diversity Conference, San Francisco, November 5, 2009.

Speaker, Seeking Diversity: Are Law Schools Legal?, Southeast Association of Law Schools, Palm Beach, Florida, August 3, 2009.

Speaker, Civil Rights in the Age of Obama, Heritage Foundation, Washington, D.C., May 13, 2009.

Moot Court Participant, Ricci v. DeStefano, Heritage Foundation, Washington, D.C., April 16, 2009.

Debate Participant, The Matthew Shepard Hate Crimes Prevention Act, Federalist Society Student Chapter, Temple University, April 14, 2009.

Discussion Leader, Colloquium: Liberty, Responsibility & the Legal Profession, San Diego, March 26-28, 2009.

Round Table Participant, Liberty & the Structure of Government, New Orleans, February 26-28, 2009.

Moderator & Symposium Organizer, Native American Government Reorganization Act, at Federal Sovereignty, State Sovereignty, And The Sovereignty of 562 Native American Tribes: A Match Made In Heaven, Or Somewhere Less Pleasant?, Third Annual Western Conference, Federal Society, Reagan Library, Simi Valley, California, January 24, 2009.

Speaker, Affirmative Action, Federalist Society Student Chapter, Washington & Lee University, January 20, 2009.

Speaker, Presidential Panel III: Associational Diversity, Annual Meeting, Association of American Law Schools, San Diego, January 8, 2009.

Speaker, Milton Friedman and His Mom, Grassroot Institute, Honolulu, July 30, 2008.

Speaker, How Free Is the University, Speaker, American Freedom Alliance, University of Southern California, June 16, 2008.

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Speaker, Hate Crimes: What Is the Proper Federal Role?, The Heritage Foundation, Washington, D.C., May 8, 2008.

Round Table Participant, Law and Liberty in the Judicial Practice of Robert H. Jackson, Sausalito, California, March 13-15, 2008.

Moderator & Symposium Organizer, Direct Democracy: The Courts and the Legislature vs. The People: Who is in Charge?, Second Annual Western Conference, Federal Society, Reagan Library, Simi Valley, California, February 23, 2008.

Speaker, Proposition 209's Effect on Student Admissions, Race and Gender Preferences at the Crossroads, California Association of Scholars, University of Southern California, January 18, 2008.

Speaker, Civil Rights: Amending State and Federal Constitutions to Prevent Sex Discrimination, The Federalist Society National Lawyers Conference, Washington, D.C., November 17, 2007.

Speaker, Grutter and Beyond, Southeast Association of American Law Schools Annual Meeting, Amelia Island, Florida, July 31, 2007.

Speaker, Lewis F. Powell Symposium: Panel on Diversity in Higher Education, Washington & Lee University, National Press Club, Washington, D.C., April 6, 2007 (broadcast on C- Span), available at http://law.wlu.edu/powell/.

Discussion Leader, Colloquia: The Federalists, the Anti-Federalists, and the Constitution They Created, San Diego, March 8-10, 2007 and January 24-26, 2008.

SELECTED AMICUS BRIEFS (LAST FOUR YEARS):

Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. (U.S. Sup. Ct. 2014)(on behalf of Gail Heriot & Peter Kirsanow)(merits stage).

Cannon v. United States (U.S. Sup. Ct. 2014)(on behalf of Gail Heriot & Peter Kirsanow)(cert stage).

Fisher v. University of Texas (5th Cir. 2013)(on behalf of Gail Heriot, Peter Kirsanow & Todd Gaziano)(on remand).

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Mount Holly v. Mount Holly Gardens Citizens in Action, Inc. (U.S. Sup. Ct. 2013)(on behalf of Gail Heriot, Peter Kirsanow & Todd Gaziano)(merits stage).

Hatch v. United States (U.S. Sup. Ct. 2013)(on behalf of Gail Heriot, Todd Gaziano & Peter Kirsanow)(petition stage).

Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (U.S. Sup. Ct. 2012, 2013)(on behalf of the California Association of Scholars, et al.)(petition and merits stages).

United States v. Cannon (5th Cir. 2013)(on behalf of Todd Gaziano, Gail Heriot & Peter Kirsanow).

Fisher v. University of Texas (U.S. Sup. Ct 2011, 2012)(on behalf of Gail Heriot, Peter Kirsanow & Todd Gaziano)(petition and merits stages).

OTHER ACTIVITIES:

Chair, Executive Committee on Civil Rights, Federalist Society (since 2005).

Chair, Association of American Law Schools Section on Remedies (2001-2002).

Board of Directors, National Association of Scholars (since1997).

Board of Directors, California Association of Scholars (since 1996).

Statewide Co-Chair, Proposition 209 Campaign (1996).

EDUCATION:

University of Chicago Law School–J.D. 1981 cum laude (In 1981, cum laude was awarded to the top 9% of the class.)

Honors: Order of the Coif, Associate Editor, University of Chicago Law Review. Comment: Civil Discovery of Grand Jury Documents, 46 U. Chi. L. Rev. 604 (1980)

Northwestern University–B.A. 1978 with highest distinction (In 1978, highest distinction was awarded to the top 1% or 2% of the class.) Major: Political Science with minor concentrations in economics and art history.

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Honors: Phi Beta Kappa; Three-Year B.A. Program Participant, Alpha Lambda Delta Honor Society

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UNITED STATES COMMISSION ON CIVIL RIGHTS

1331 PENNSYLVANIA AVENUE , NW, WASHINGTON, DC 20425 www.usccr.gov

September 16, 2013

Dear President Obama:

We write as four members of the eight-member U.S. Commission on Civil Rights, and not on behalf of the Commission as a whole. We are writing to address media reports that you are considering implementing provisions of the Native Hawaiian Government Reorganization Act (known as the Akaka bill) through executive action.1 The Commission held a hearing regarding the Akaka bill in 2006 and issued a report recommending against passage.2 We are writing to reiterate the Commission’s recommendation. We believe that provisions of the Akaka bill are both unwise and unconstitutional. Executive action implementing provisions of the Akaka bill would be at least as unwise and unconstitutional.

Neither Congress nor the President has to power to create an Indian tribe or any other entity with the attributes of sovereignty. Nor do they have the power to reconstitute a tribe or other sovereign entity that has ceased to exist as a polity in the past. Tribes are “recognized,” not created or reconstituted. The federal government may on appropriate occasions assist tribes in transforming their internal political structure, but they cannot bring into existence a tribe or other sovereign entity that has never existed or has ceased to exist as a separate polity.

Real tribes—the kind the Federal government may recognize—are defined by political structure and the maintenance of a separate society, not by bloodline.3 A mere shared blood quantum among the members of a group is not sufficient for the federal government to recognize an Indian tribe. The regulations governing the recognition of an Indian tribe focus on the cohesiveness of the group and evidence of a functioning polity of long duration.4 The regulations do not, for instance, establish what quantum of Indian blood must be possessed by each member of the tribe, although the rate of intermarriage

1 Valerie Richardson, Obama urged to use executive order to recognize Native Hawaiians,WASH. TIMES, Aug. 22, 2013, http://www.washingtontimes.com/news/2013/aug/22/obama-urged-to-use-executive-order- to-recognize-na/. 2 U.S. Commission on Civil Rights, The Native Hawaiian Government Reorganization Act of 2005, at 15 (Jan. 20, 2006), http://www.usccr.gov/pubs/060531NatHawBriefReport.pdf. 3 See 25 C.F.R. §§ 83.6-83.7. 4 25 C.F.R. § 83.7: The mandatory criteria [for recognition as an Indian tribe] are: (a) The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900 . . . (b) A predominant portion of the petitioning group comprises a distinct community and has existed as a distinct community from historical times until the present. . . . (c) The petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present. (32 of 38) Case 1:15-cv-00322-JMS-BMK Case: 15-17134, 11/13/2015, Document ID: 9755149, 91-8 Filed DktEntry: 10/09/15 25-2, Page Page 2 of17 5 of 22 PageID #: 1146

UNITED STATES COMMISSION ON CIVIL RIGHTS

1331 PENNSYLVANIA AVENUE , NW, WASHINGTON, DC 20425 www.usccr.gov

with persons outside the group is a factor in determining the cohesiveness of the group and whether it is functioning as a separate polity.5

The efforts to obtain federal recognition of native Hawaiians as an Indian tribe or other sovereign entity are attempts to create a tribe out of a race.6 There is no native Hawaiian entity, let alone a governing body of such native Hawaiians, that has existed on anything approaching a continuous basis since 1900. There is no “present governing document including its membership criteria” because there is no tribe to govern.7 The Native Hawaiian Roll Commission had to be created by the Hawaii legislature to attempt to find native Hawaiians to register. The fact that this step was taken by state government, and was not a spontaneous effort of native Hawaiians themselves, demonstrates that native Hawaiians lack the cohesion and separate polity required for tribal status.

There is no political unit presently governing Native Hawaiians, and judging from the response thus far to the state-sponsored enrollment process, there may be far less interest in creating one than the country has been led to believe. Additionally, the very high percentage of people reporting mixed-race ancestry as opposed to pure Native Hawaiian ancestry8 indicates that a “predominant portion of the petitioning group” does not comprise a distinct community.9

The irony of the current demand to confer tribal sovereignty on members of the Native Hawaiian race is that the Kingdom of Hawaii, which is now pointed to as evidence that this racial group once functioned as a distinct and separate Native Hawaiian polity, was actually an impressively modern multi-racial society in which immigrants were not only welcome, they were sought after. The Hawaiian monarchs ruled over anyone who was a member of their political community, not merely Native Hawaiians.10 Long before the overthrow of the monarchy, starting in the early 1800s, the Hawaiian royal family intermarried with British and American immigrants, and both immigrants and their mixed-race children held high positions in Hawaiian society. Non-native people began to serve in the King’s cabinet and western-style parliament as early as the 1840s, including Keoni Ana, who was half-British and served as Kuhina Nui (co-regent)11 beginning in

5 25 C.F.R. § 83.7(b)(i). 6 As Justice Kennedy has noted, such ancestral classifications are a proxy for racial classifications and implicate the same constitutional concerns. Rice v. Cayetano, 528 U.S. 495, 516-17 (2000). 7 25 C.F.R. § 83.7(d). 8 Only 80,337 people reported Native Hawaiian ancestry alone, as opposed to 209,633 reporting mixed ancestry that includes Native Hawaiian ancestry. 9 25 C.F.R. § 83.7(b). 10 Gail Heriot and Peter Kirsanow, Congress Tries to Break Hawaii in Two,WALL ST. J., Feb. 28, 2010, http://online.wsj.com/article/SB10001424052748703411304575093180795586118.html. 11 See “Kuhina Nui, 1819-1864,” Hawai’i State Archives, http://ags.hawaii.gov/archives/centennial- exhibit/kuhina-nui-1819-1864/. (33 of 38) Case 1:15-cv-00322-JMS-BMK Case: 15-17134, 11/13/2015, Document ID: 9755149, 91-8 Filed DktEntry: 10/09/15 25-2, Page Page 3 of18 5 of 22 PageID #: 1147

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1331 PENNSYLVANIA AVENUE , NW, WASHINGTON, DC 20425 www.usccr.gov

1845.12 Hawaiian monarchs were hardly resistant to Western values; beginning fairly early in the century they were themselves Christians and tried to spread Christian and Western traditions to all those on the Islands.13 Encouraging immigration from countries as diverse as China, Japan, Norway and Portugal was among their top priorities. King Kalakaua toured the world in large part to attract immigration to his Kingdom.14

If the Kingdom of Hawaii had been a kinship-based tribe rather than a modern multiracial society, the Hawaiian monarchs would have had few people to rule by the time the monarchy was overthrown in 1893, and it is unlikely they would have been able to rule the entirety of the Hawaiian Islands. Native Hawaiians were a minority in 1893,15 and in 1919 only numbered 22,600.16 To reiterate, many members of the non-Hawaiian majority who lived in Hawaii were full members of the society governed by the monarchy. Hence, whatever the perceived or actual wrongs that were done to native Hawaiian rulers in the late nineteenth century, there was not then a distinct “tribe” of native Hawaiians living separately from the rest of society, and there certainly has not been any in the 120 years since.

As we have noted before,17 the efforts to create a tribe are in large part an effort to preserve unconstitutional race-based privileges for Native Hawaiians in the wake of Cayetano v. Rice. The theory is that if Native Hawaiians can be transformed into a tribe, these privileges can be preserved under Morton v. Mancari.18 This is mistaken. Conferring tribal status on a racial group is itself a violation of the equal protection guarantees of the Constitution. As the Supreme Court recently reiterated in Fisher v. University of Texas at Austin, “‘Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people,’ and therefore ‘are contrary to our traditions and hence constitutionally suspect [citations omitted].’”19 This is especially the case in our increasingly mixed-race society, of which Hawaii is a prime example. It can only sow bitterness and division for otherwise indistinguishable neighbors living

12 See “Keoni Ana,” Hawai’i State Archives, http://ags.hawaii.gov/archives/centennial-exhibit/keoni-ana/. Keoni Ana’s niece Emma later became Queen Consort to King Kamehameha IV and Queen Liliuokalani married an American. 13 See generally Hawaiian Constitution of 1840, available at http://ags.hawaii.gov/wp- content/uploads/2012/09/1840E.pdf (enshrining Christian and Western principles of government in the Constitution). 14 See, e.g., Ralph S. Kuykendall, II The Hawaiian Kingdom 1854-1874: Twenty Critical Years 177-96 (1953); Ralph S. Kuykendall, III The Hawaiian Kingdom 1874-1893: The Kalakaua Dynasty 116-85 (1967). 15 Heriot and Kirsanow, supra note 10. 16 20 U.S.C. § 7512(7). 17 Id. 18 417 U.S. 535 (1974). 19 133 S.Ct. 2411, 2418 (2013). (34 of 38) Case 1:15-cv-00322-JMS-BMK Case: 15-17134, 11/13/2015, Document ID: 9755149, 91-8 Filed DktEntry: 10/09/15 25-2, Page Page 4 of19 5 of 22 PageID #: 1148

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side-by-side to be subject to different laws and different privileges because one has “one drop” of Native Hawaiian blood and the other does not.20

Rewriting history to create a tribe out of the Native Hawaiian race would open a Pandora’s box for other groups to seek tribal status. Cajuns are an identifiable ethnic group in Louisiana who have had a continuous presence there for over two hundred years. Their ancestors may have been none too pleased when Napoleon sold the lands of the Louisiana Purchase to America, and they had no opportunity to assert sovereignty. Should Cajuns be allowed to seek tribal status? Should the Amish of Pennsylvania or the Hasidic Jews of New York be allowed to seek tribal status? Both groups have far more separation from mainstream society, much lower rates of intermarriage,21 and all- encompassing rules governing the lives of members than do Native Hawaiians.22 Both groups also have histories stretching far back.

Lastly, it is worth mentioning that the proponents of Hawaiian statehood were at pains to stress the state’s multiracial character. Proponents emphasized that Hawaiians, regardless

20 This is particularly important to take into account given that racial tensions over the private Kamehameha Schools admissions policy have previously led to violence and threats against the disfavored race, see Doe v. Kamehameha Schools/Bernice Pauahai Estate, 596 F.3d 1036, at 1040-42, 1044-45 (9th Cir. 2010) (discussing threats made toward Doe children and their attorney, and severe physical violence inflicted by Native Hawaiian children upon non-Native Hawaiian classmates because of the latter’s skin color), leading the U.S. Attorney for Hawaii to “[issue] a strongly-worded warning, reminding the public that threats based on race are a federal felony.” 21 See Joseph Berger, Out of Enclaves, a Pressure to Accommodate Traditions, N.Y. TIMEs, Aug. 21, 2013, http://www.nytimes.com/2013/08/22/nyregion/hasidic-jews-turn-up-pressure-on-city-to-accommodate- their-traditions.html?pagewanted=all&_r=0: The latest population survey by the UJA-Federation of New York counted roughly 330,000 ultra-orthodox Jews, or 30% of the city’s 1.1 million Jews, a figure that melds Hasidim with others who are as scrupulously observant but do not revere a particular grand rabbi. . . . [Eric Rassbach of the Becket Fund writes] “Because of differing birth and adherence rates, the future of Judaism in New York City increasingly appears to be Orthodox.” See also Colton Totland, Amish enjoy unexpected boom in numbers: High birthrate and decline in defections spur growth,WASH. TIMES, Aug. 9, 2012, http://www.washingtontimes.com/news/2012/aug/9/amish-enjoy-unexpected-boom-in-numbers/?page=all: A combination of high birthrates and falling defection rates among adults—more than 4 in 5 people raised in Amish homes now opt to stay within the community—has led demographers to predict that the number of Amish communities in the United States will double over the next 40 years. 22 Xuanning Fu and Tim B. Heaton, Status Exchange in Intermarriage Among Hawaiians, Japanese, Filipinos and Caucasians in Hawaii: 1983-1994, 31 J. COMP. FAMILY STUDIES 45, 58 (2000): There are several important patterns of mate selection in Hawaii. First, ingroup marriage is the strongest norm, despite a long tradition of interracial marriage in the islands. . . . This tendency, however, is weaker for Hawaiians than for other groups of similar size, probably because Hawaiians (most of them Part-Hawaiians) have a family history of intermarriage . . . . (35 of 38) Case 1:15-cv-00322-JMS-BMK Case: 15-17134, 11/13/2015, Document ID: 9755149, 91-8 Filed DktEntry: 10/09/15 25-2, Page Page 5 of20 5 of 22 PageID #: 1149

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of racial background, were Americans in spirit.23 If native Hawaiians wished to receive tribal status, this was the time to raise the issue. Instead, 94.3 percent of all Hawaiians voted in favor of statehood—and they did so after their representatives rejected separate tribal enclaves in Hawaii that were being created at the same time in Alaska for the Inuit and other native Alaskans. Given the demographics of Hawaii at the time, “at least three- fifths of [Native Hawaiians] must also have voted for statehood with no separate rights for individuals of their ancestry.”24

In closing, we must strongly advise against any attempt to recognize Native Hawaiian “tribal” claims via executive order. Congress might be granted somewhat more deference by the courts, but such action by Congress would also be unconstitutional. As unwise and as beyond the scope of Congress’s powers as it would be for Congress to attempt to organize Native Hawaiians as a tribe, we believe it would be doubly so for you to attempt to do so by executive action.

If you have any questions or if we can be of any assistance, please contact Commissioner Kirsanow’s special assistant, Carissa Mulder, at [email protected].

Sincerely,

Abigail Thernstrom Peter Kirsanow Vice Chair Commissioner

Gail Heriot Todd Gaziano Commissioner Commissioner

Cc: The Honorable Maria Cantwell, Chairwoman, Committee on Indian Affairs The Honorable John Barrasso, Vice Chairman, Committee on Indian Affairs The Honorable Doc Hastings, Chairman, Committee on Natural Resources The Honorable Peter DeFazio, Ranking Member, Committee on Natural Resources

23 Erica Little and Todd F. Gaziano, Abusing Hawaiian History: Hawaiians Knew Their History in 1959, The Heritage Foundation, June 8, 2006, http://www.heritage.org/research/reports/2006/06/abusing- hawaiian-history-hawaiians-knew-their-history-in-1959#_ftn4. 24 Id. (36 of 38) Case 1:15-cv-00322-JMS-BMK Case: 15-17134, 11/13/2015, Document ID: 9755149, 91-9 Filed DktEntry: 10/09/15 25-2, Page Page 1 of21 2 of 22 PageID #: 1150 (37 of 38) Case 1:15-cv-00322-JMS-BMK Case: 15-17134, 11/13/2015, Document ID: 9755149, 91-9 Filed DktEntry: 10/09/15 25-2, Page Page 2 of22 2 of 22 PageID #: 1151 (38 of 38) Case: 15-17134, 11/13/2015, ID: 9755149, DktEntry: 25-3, Page 1 of 1