This amicus curiae brief supports the appellants and seeks reversal of the order denying a preliminary injunction. The brief was submitted by five native Hawaiian beneficiaries in support of limiting voting in the election at issue to native Hawaiians. It argues that allowing non-native Hawaiians to vote would violate equal protection and that native Hawaiians should determine their own membership qualifications as a tribe. The brief provides historical background on land policies in Hawaii and argues that the state's analogy of native Hawaiians to an Indian tribe fails because there is no blood quantum requirement to vote.

1. C.A. No. No. 15-17134
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______
KELl'I AKINA, et al.
Plaintiffs-Appellants,
v.
STAT E OF HAWAII, et al.,
Defendants-Appellees
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
_______
AMICUS CURIAE BRIEF OF NATIVE HAWAIIAN BENEFICIARIES,
SAMUEL L. KEALOHA, JR., VIRGIL E. DAY, JOSIAH L. HOOHULI,
PATRICK L. KAHAWAIOLAA and MELVIN HOOMANAWANUI IN
SUPPORT OF APPELLANTS AND REVERSAL OF THE ORDER
DENYING PRELIMINARY INJUNCTION
_______
WALTER R. SCHOETTLE 1559
P. O. Box 596
Honolulu, Hawaii 96809
Telephone: 537-3514
email: papaaloa@umich.edu
Attorney for native Hawaiian Amici,
SAMUEL L. KEALOHA, et al.

2. ii
TABLE OF CONTENTS
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
I. Interest of Amici . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Fees, Costs and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
III. Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
IV. Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B. State attempts to justify Act 195 by analogy to an Indian tribe . . . . 14
C. The lack of a blood quantum is fatal to the State’s Indian tribe
analogy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
D. Voting in the election should be limited to “native Hawaiians” . . . 19
1. Allowing non-native Hawaiians to vote violates Equal
Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2. The beneficiaries of HHCA and § 5(f) are native Hawaiians.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3. Native Hawaiians should have the right to decide for
themselves what qualifications should be imposed for tribal
membership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
E. Amici support Appellants in their appeal seeking
reversal of the order denying preliminary injunction. . . . . . . . . . . . 23
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

3. iii
TABLE OF AUTHORITIES
Cases cited:
Kahalekai v. Doi, 60 Haw. 324, 590 P.2d 543 (1979). . . . . . . . . . . . . . . . . . . . . . 13
Kealoha v. Machado, 131 Haw. 62, 315 P.3d 213 (2013) . . . . . . . . . . . . . . . . . . 13
Morton v. Mancari, 417 U.S. 535 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16
Rice v. Cayetano, 528 U.S. 495 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16, 21, 24
State v. Zimring, 58 Haw. 106 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Thurston v. Bishop, 7 Haw. 421 (1888) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Constitution:
Haw.Const, Art. XII, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Hawaii Constitution, Article XII, Sec. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
U.S. Const., Am. 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 16
Statutes cited:
2011 Haw.Sess.L., Act 195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5
2011 Haw.Sess.L., Act 195, § 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 15, 22
2011 Haw.Sess.L., Act 195, § 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 21
2011 Haw.Sess.L., Act 195, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2011 Haw.Sess.L., Act 195, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
25 U.S.C. § 476 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

4. iv
25 U.S.C. § 477 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
25 U.S.C. § 479 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Admission Act, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12
Admission Act, § 5(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4, 12
H.R.S. § 10-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 13
H.R.S., Chapter 10H . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Hawaiian Homes Commission Act, 1920 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Revised Laws of Hawaii, 1925, v. II, pp 2120-2152. . . . . . . . . . . . . . . . . . . . . . . . 8
Rules cited:
F.R.A.P., Rule 29(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Other authorities cited:
A Broken Trust, The Hawaiian Homelands Program: Seventy Years of
Failure of the Federal and State Governments to Protect the Civil
Rights of Native Hawaiians, Hawaii Advisory Committee to the U.S.
Commission on Civil Rights, December 1991 . . . . . . . . . . . . . . . . . . . . . . 12
Cannelora, Louis, “The Origin of Hawaii Land Titles and the Rights of
Native Tenants,” Security Title Corp., Honolulu, Hawaii (1974) . . . . . . 7-9
Chinen, Jon Jitsuzo, “Original Land Titles in Hawaii”, Library of Congress
No. 51- 17314 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Chinen, Jon Jitsuzo, “The Great Mahele”, University of Hawaii Press,
(1957), . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Final Report on the Public Land Trust, Legislative Auditor of the State of

5. v
Hawaii, Rep. No. 86-17, December 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Fuchs, Lawrence H., Hawaii Pono: A Social History, Harcourt, Brace &
World, Inc., New York (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Management and Financial Audit of the Department of Hawaiian Home
Lands, Auditor of the State of Hawaii, Rep. No. 93-22, December
1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Progress Report on the Implementation of Recommendations of the
Federal- State Task Force, Office of the Inspector General, Audit
Report, Rep. No. 92-I-641, March, 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Sen Doc. No. 151, 75th Cong., 3d Sess, Serial Set 10247 (Jan. 5, 1939) . . . . . . 10
Wright, Theon, The Disenchanted Isles, The Dial Press, New York (1972) . . . . . 7
“Broken Promise: How Everyone Got Hawaiians’ Homelands Except Hawaiians”
Wall Street Journal, September 9, 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

6. 1
This is the only and official definition of the term “native Hawaiian” in
the Hawaii Constitution. The term “qualified Native Hawaiian” with a capital “N“
is established by 2011 Haw.Sess.L., Act 195, § 2 (“Act 195”), as the qualification
for voting in the election which is the subject of this litigation and which election
Appellants seek to enjoin are has no blood quantum requirement. Thus anyone
with even one drop of Hawaiian blood is entitled to vote. The State and OHA
insist on using the term “Native Hawaiian” with a capital “N” in order to cause
confusion. As used herein, the terms “native Hawaiian” or “Native Hawaiian” both
refer exclusively to those Hawaiians of not less than one-half part blood quantum.
The term “Hawaiian” refers to all descendants of the original inhabitants as
defined by H.R.S. § 10-2. It is conceded by all parties below that the number of
living Hawaiians is in the neighborhood of 500,000. The number of native
Hawaiians is unknown, but most likely somewhere between 30,000 and 40,000
people.
1
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELI’I AKINA, et al.,
Plaintiffs-Appellants,,
v.
STATE OF HAWAII, et al.,
Defendants-Appellees.
BBBB
....
....
....
CCCC
....
....
....
....
No. 15-17134
D.C. No. 1: 15-cv-00322-JMS-BMK
District of Hawaii,
Honolulu
DDDD
AMICUS CURIAE BRIEF OF NATIVE HAWAIIAN BENEFICIARIES,
SAMUEL L. KEALOHA, JR., VIRGIL E. DAY, JOSIAH L. HOOHULI,
PATRICK L. KAHAWAIOLAA and MELVIN HOOMANAWANUI IN
SUPPORT OF APPELLANTS AND REVERSAL OF THE ORDER
DENYING PRELIMINARY INJUNCTION
I. INTEREST OF AMICI
Amici are all native Hawaiians1
, as defined by Section 201 of the Hawaiian

7. 2
Homes Commission Act, 1920, Pub. L. No. 67-34, 42 Stat 108 (July 9, 1921
(hereafter “HHCA”), incorporated into the Constitution of the State of Hawaii,
pursuant to Section 4 of the Hawaii Admission Act, Pub.L. 86–3, 73 Stat. 4 (March
18, 1959) (hereafter “Admission Act”). As such, each of the amici is a “descendant
of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands
previous to 1778.” As such, amici are beneficiaries of the HHCA and special
beneficiaries of the trust established by § 5(f) of the Admission Act.
Samuel L. Kealoha, Jr., is a Hawaiian homestead applicant, who has been on
the Hawaiian homes waiting list since 1977. Mr. Kealoha’s interest is his concern that
none of the Appellees here are speaking on behalf of native Hawaiian beneficiaries.
“They are talking over us. The scheme of undermining the native Hawaiians’ interest
in § 5(f) and it being subject to corruption has gone on too long. The State came up
with this charade of OHA, and the U.S. has not brought suit against the State for
breach of trust under § 5(f). The United States should know the difference between
Congress’ definition of native Hawaiian of 1920, (that the state solemnly accepted in
1959,) versus the State’s made-up definition of ‘Hawaiian’ in 1978, when it
manufactured the OHA scheme created to undermine growing native Hawaiian
interests in § 5(f).”
Mr. Kealoha is also a former OHA trustee, who, as Trustee, was too often
out-voted by“Hawaiian” trustees (hostileto nativeHawaiians),who soughtto benefit

8. 3
themselves and this diluted class of“Hawaiians,”including theirfriends,relativesand
others who are not native Hawaiian, with lucrative contracts. Mr. Kealoha witnessed
the State’s OHA agency misspend § 5(f) proceeds that could have been used to fund
the HHCA.
Virgil E. Day, Jr., applied for a Hawaiian homestead in 1984, yet did not
receive his lease until 1999, because the State claimed they had no money for
infrastructure. Now a lessee, yet holding an unimproved lot, at Kahiki Nui, island of
Maui, with no paved road and no running water. Mr. Day is a member of Ka Ohana
o Kahiki Nui, ahomestead beneficiaryorganization seeking settlement of Kahiki Nui.
Ka Ohana o Kahiki Nui applied to OHA for a grant for water tanks, but OHA refused
to expend any § 5(f) money to assist the beneficiaries.
Patrick Kahawaiolaa, is a native Hawaiian, who was born and raised on the
Keaukaha Hawaiian homestead, serving in various capacities in the Keaukaha
Hawaiian Homestead Association, most recently as President of the Keaukaha
Hawaiian Homestead Association for approximately six years. His main interest is
full implementation of the HHCA, rehabilitation and self-determination of native
Hawaiians, use of § 5(f) monies to benefit native Hawaiians and to settle the
homelands.
Josiah L. Hoohuli, is a homestead lessee. He was raised on his mother’s
homestead, who received her lease in 1930. Born in 1938, Mr. Hoohuli has lived his

9. 4
entire life on the Hawaiian homestead, except for two years in California while in the
service. Mr. Hoohuli, opposed the State of Hawaii creating OHA in 1978, giving
OHA § 5(f) monies, while OHA does not help fund the HHCA. Mr. Hoohuli believes
native Hawaiian beneficiaries should be in charge of their own money so that it can
be used for native Hawaiian economic independence, self-sufficiency and
rehabilitation upon the homelands. Mr. Hoohuli is a founding member of Ho’ala
Kanawai, Inc, that was formed in about 1975, and is significant because it was an
educational agency charged with educating native Hawaiians about the § 5(f) trust.
Melvin Hoomanawanui, is a homesteader of Lai o Pua Hawaiian homestead,
Kona, island of Hawaii. Mr. Hoomanawanui joined Ho’ala Kanawai, Inc., in 1978.
Mr. Hoomanawanui has always been an advocate for bona-fide native Hawaiians. He
vehemently opposes the State funneling § 5(f) monies to its agency, OHA, and OHA
misusing, misspending and cheating native Hawaiians out of monies that should be
used to fund the HHCA, or otherwise rehabilitate native Hawaiians.
Amici sought to intervene in this action in the District Court as Defendants to
assert a cross-claim against the existing Defendants to challenge the State’s authority
to establish a “Sovereign Hawaiian Entity” without limiting the voter qualifications
to native Hawaiians. Amici sought to allege that the creation of such entity to
represent native Hawaiians without a blood quantum is a violation of the rights of all
native Hawaiians to Equal Protection of the law as guaranteed by the Fourteenth

10. 5
Amendment to the United States Constitution.
Amici seek to file this brief pursuant to the authority of F.R.A.P., Rule 29(b)
as set forth in the accompanying motion.
II. FEES, COSTS AND COUNSEL
This amicus brief has been prepared entirely by the undersigned counsel, who
was also counsel for amici with respect to their motion to intervene in this case in the
District Court. None of the counsel for the parties to this appeal authored this brief
in whole or in part. None of the counsel for the parties to this appeal rendered any
assistance whatsoever in its preparation.
None of the parties or their counsel contributed any money intended to fund
preparing or submitting the brief. No other person, including amici themselves,
contributed any money intended to fund preparing or submitting the brief. This brief
is being prepared entirely without compensation to undersigned counsel, in the sole
hope of possibly being compensated at a later date pursuant to 42 U.S.C. § 1988,
upon being granted permission to intervene in this case in the District Court.
III. SUMMARY OF ARGUMENT
Theelection which Appellants seek to enjoin is for delegates to aconstitutional
convention to establish a Hawaiian governing entity, pursuant to Act 195. As
provided by Act 195:
The purpose of this Act is to recognize Native Hawaiians as the only

11. 6
indigenous, aboriginal, maoli population of Hawaii. It is also the State’s
desire to support the continuing development of a reorganized Native
Hawaiian governing entity and, ultimately, the federal recognition of
Native Hawaiians. The legislature urges the office of Hawaiian affairs
to continue to support the self-determination process by Native
Hawaiians in the formation of their chosen governmental entity.
Act 195, § 1.
In the District Court below, the State and State defendants attempt to justify the
creation of this Native Hawaiian governing entity by analogy to the political status
of Indian tribes, as set forth in Morton v. Mancari, 417 U.S. 535 (1974). Doc. 80, pp.
28-42.
The State made a similar Indian tribal analogy argument in Rice v. Cayetano,
528 U.S. 495 (2000), where a non-Hawaiian voter challenged the State’s restriction
of qualifications to vote for OHA trustees to Hawaiians without a blood quantum. In
Rice, the U.S. Supreme Court ruled that this restriction violated Rice’s Fifteenth
Amendment right to vote because OHA trustees are state officials. In Rice, Justices
Breyer and Souter filed a concurring opinion rejecting the Mancari analogy
specifically because of the lack of a blood quantum.
Although the State is now attempting to avoid the Rice problem by creating an
entity of non-State officials, Amici argue that the lack of a blood quantum presents
the same problem addressed by Justices Breyer and Souter in their concurring
opinion. The State cannot create a Native Hawaiian governing entity without
restricting voter eligibility to native Hawaiians. Therefore, the election which

12. 7
Appellants seek to enjoin because they are excluded, should properly be enjoined
because Hawaiians who do not meet the blood quantum are included.
Either way, an election limited to 500,000 Hawaiians is extremely unlikely to
be ultimately held valid and should be enjoined pending appeal. The election should
not proceed unless and until the courts have properly decided who is eligible to vote.
In all likelihood, this is a question that will not be decided until the U.S. Supreme
Court has had the final word.
IV. ARGUMENT
A. Historical Background
In 1778, upon arrival of James Cook in the Hawaiian Islands the native
Hawaiian population exceeded 300,000.Wright,Theon, The Disenchanted Isles, The
Dial Press, New York (1972) p. 68. It is generally accepted that there was then in
existence a feudal type of land ownership system, in which all of the land was owned
by the King and granted by him to his chiefs, known as konohikis, and, in turn, by
them to lower level chieftans and eventually the tenant farmers. See Chinen, Jon
Jitsuzo, “Original Land Titles in Hawaii”, Library of Congress No. 51- 17314 (1961),
p. 1; Cannelora, Louis, “The Origin of Hawaii Land Titles and the Rights of Native
Tenants,” Security Title Corp., Honolulu, Hawaii (1974), p. 1.
Even then it could not be considered a true feudal system, as native tenants
were not serfs with no interest in the land. Instead, Hawaiian native tenants, as a

13. 8
group, held an undivided one-third interest in the total land mass of the Hawaiian
Islands and surrounding waters. This was recognized in the first constitution of the
Kingdom of Hawaii adopted in 1840. As provided therein:
Kamehameha I, was the founder of the kingdom, and to him belonged
all the land from one end of the Islands to the other, though it was not
his own private property. It belonged to the chiefs and the people in
common, of whom Kamehameha I was the head, and had the
management of landed property.
State v. Zimring, 58 Haw. 106, 111 (1977) quoting Fundamental Law of Hawaii
(1904) at 3 quoting The Constitution of 1840.
This shows that the King held title merely as trustee for the use and benefit of
the beneficiaries—the chiefs, konohiki, and the people.
On December 10, 1845, the Board of Commissioners to Quiet Titles,
commonly known as the Land Commission was established to adjudicate and settle
disputes over titles of real property. Cannelora, supra, p. 7. It was recognized in the
Principals of the Land Commission as well as the Privy Counsel that the ownership
of the land at that time was held in equal one-third undivided interests by the King,
the konohiki landlords and the tenants living on the land. Cannelora, supra, pp. 10,
12. See also Thurston v. Bishop, 7 Haw. 421, 430 (1888). These principles are fully
set out in Revised Laws of Hawaii, 1925, v. II, pp 2120-2152.
The Land Commission analyzed in detail the land system existing at the time
in the Islands. It then declared that “there are but three classes of person having
vested rights in the land, 1st, the government, 2nd, the landlord (the chiefs and

14. 9
konohiki), and 3rd, the tenant.” Chinen, Jon Jitsuzo, “The Great Mahele”, University
of Hawaii Press, (1957), p. 9.
The problem was that the Land Commission had no means to divide these
interests, so that fee simple ownership of land could not be obtained unless all of
these parties joined in the deed. In order to solve this problem the King and konohiki
divided their lands between themselves in what is known as The Great Mahele. This
was actually a series of divisions between the King and 245 konohiki made between
January 27, 1848 and March 7, 1848, which allowed konohiki to take their claims to
the Land Commission and obtain title to the land subject to the rights of the native
tenants. Cannelora, supra, p. 13. Native tenants were not able to obtain title to their
interests until 1850, when legislation was enacted allowing them to present kuleana
claims to the Land Commission. Cannelora, supra, 17-19.
But the law did not favor the granting of such claims. First, native tenants were
less well educated and less informed than the konohiki class and may not have been
aware of their right to obtain title or the means to perfect it. Second, native tenants
were given only a 4 and one-half year period within which to file their claims, after
which the claims were forever barred. Id. p. 19. The konohiki, on the other hand, were
given several extensions of time to make their claims, totaling 49 years in all. Id.
Third, native tenants were required to incur considerable expense of a survey of their
claim, while konohiki were not. Id. As a result, only approximately 28,000 acres of

15. 10
land—far less than the one-third interest that had previously been recognized—was
awarded to native tenants under this provision. Fuchs, Lawrence H., Hawaii Pono:
A Social History, Harcourt, Brace & World, Inc., New York (1961) p. 257.
Thus, a provision purportedly to allow native tenants to obtain fee simple title
to their land actually operated to extinguish the claims of the vast majority of native
tenants who failed to go through the process of surveying and registering kuleana
claims. Title to the land to which they would have been entitled remained with the
Kingdom of Hawaii and was eventually taken over by the Republic and then
transferred to the United States upon annexation.
When the number of native Hawaiians had plummeted from about 300,000, in
1778, to only 40,000, in 1920, Congress became aware of the condition of native
Hawaiians teetering on the verge of extinction. The descendants of the native
Hawaiian tenants were then barely surviving in abject poverty in the urban centers of
Hawaii. Following extensive hearings, Congress found that the cause of such dismal
conditions of native Hawaiians was “a landless people in the country of their
forefathers.” Sen Doc. No. 151, 75th Cong., 3d Sess, Serial Set 10247 (Jan. 5, 1939),
pp. 81-83. Landlessness, destitution and poverty: that is the legacy left by the
Kingdom of Hawaii to the descendants of native Hawaiian tenants. At the same time,
an undivided, undelivered one-third interest in the 1.8 million acres of government
land was impressed with the outstanding equitable interests of native tenants who did

16. 11
not receive their lands under the kuleana law.
Therefore, it was entirely appropriate for Congress to set aside 200,000 acres
of this land in order to redress this grave injustice suffered by native tenants under the
Kingdom of Hawaii and attempt to rehabilitate the descendants of the native tenants
having not less than one-half part Hawaiian blood. The United States Congress was
so moved to enact the HHCA to rehabilitate native Hawaiians. Congress enacted the
HHCA as compensation to the descendants for the loss their ancestors had suffered
in the Mahele. This was not a racial discrimination any more than the intestate
succession laws that limit inheritance rights to the more closely related kin.
It was the United States Congress that determined, the connection between the
dismal condition of the native Hawaiians and their loss of their land. It was the United
States Congress that went about to repair such condition by setting aside a portion of
the land the United States held, for the exclusive benefit and the purpose of
rehabilitating the native Hawaiian tenants and their heirs under the HHCA. It was the
United States Congress that reasoned that rehabilitating the native Hawaiian tenants
upon a small portion of their formerly undistributed lands (that should have been
distributed in the Mahele of 1848) would allow the native Hawaiians to strive to pick
themselves up through hard work, on their lands, and thereby rehabilitate themselves
with the opportunity under the HHCA.
In 1959, the proponents of statehood persuaded Congress to turn over the

17. 12
administration of the Hawaiian Homes program to the State in exchange for the
imposition of the State-Federal compact in § 4 of the Admission Act and the § 5(f)
trust for the purpose of the betterment of the condition of native Hawaiians.
In § 4 of the Admission Act, the State agreed to a solemn compact with the
United States that the HHCA would be adopted as a provision of the State
Constitution. But after statehood, the State did little or nothing to implement HHCA
or the § 5(f) trust until 1978. Final Report on the Public Land Trust, Legislative
Auditor of the State of Hawaii, Rep. No. 86-17, December 1986; A Broken Trust, The
Hawaiian Homelands Program: Seventy Years of Failure of the Federal and State
Governments to Protect the Civil Rights of Native Hawaiians, Hawaii Advisory
Committee to the U.S. Commission on Civil Rights, December 1991; Progress
Report on the Implementation of Recommendations of the Federal- State Task Force,
Office of the Inspector General, Audit Report, Rep. No. 92-I-641, March, 1992;
Management and Financial Audit of the Department of Hawaiian Home Lands,
Auditor of the State of Hawaii, Rep. No. 93-22, December 1993; “Broken Promise:
How Everyone Got Hawaiians’ Homelands Except Hawaiians” Wall Street Journal,
September 9, 1991, p. 1.
In 1978, as the result of native Hawaiian pressure to implement HHCA and the
§ 5(f) trust, State Constitutional amendments were proposed to establish OHA.
However, in doing so the seeds of a plan to eventually eliminate HHCA and § 5(f)

18. 13
were planted. OHA was created “to manage and administer the proceeds fromthe sale
or other disposition of the lands, natural resources, minerals and income derived from
whatever sources for native Hawaiians and Hawaiians, including all income and
proceeds from that pro rata portion of the trust referred to in section 4 of this article
for native Hawaiians . . . . ” Haw. Const., Art. XII, § 6. The proposed Constitutional
amendments establishing OHA included the definition of a term called “Hawaiians”
as “any descendant of the races inhabiting the Hawaiian Islands, prior to 1778”
without regard to a blood quantum. This proposed Constitutional definition was not
ratified by the voters and did not become part of the Constitution. Kahalekai v. Doi,
60 Haw. 324, 342, 590 P.2d 543 (1979). Nevertheless, the term was defined and
adopted by the legislature as part of the statutory establishment of OHA. H.R.S. § 10-
2. Thus, the Hawaii Constitution and H.R.S., Chapter 10, created an inherent conflict
of interest in which OHA was established to better the condition of Hawaiians as well
as native Hawaiians, but funded almost entirely with a pro rata portion of the
proceeds from the § 5(f) trust. Haw.Const, Art. XII, § 4. Ever since its establishment,
OHA has been doing its best to eliminate the blood quantum. See Kealoha v.
Machado, 131 Haw. 62, 315 P.3d 213 (2013).
In 2011, the enactment of Act 195 and H.R.S., Chapter 10H allows 500,000
Hawaiians to vote to organize a Hawaiian self-governing entity to determine the
disposition of Hawaiian homelands and § 5(f) proceeds, which were set aside by

19. 14
Congress for the betterment of the conditions of 30-40,000 native Hawaiians. This
election which Appellants seek to enjoin will implement that process.
B. State attempts to justify Act 195 by analogy to an Indian tribe
Thestated purposeofAct195 is toestablish an Hawaiian self-governing entity.
Section 1 of Act 195 states:
Native Hawaiians have continued to maintain their separate identity as
a single, distinctly native political community through cultural, social,
and political institutions and have continued to maintain their rights to
self-determination, self governance, and economic self-sufficiency.
Section 2 of Act 195 creates a new chapter of Hawaii Revised Statutes, section 2 of
which states its purpose as follows:
§ -2 Purpose. The purpose of this chapter 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. In
section 5(f) of the Admission Act of 1959, Congress created what is
commonly known as the ceded lands trust. The ceded lands trust,
consisting of lands, including submerged lands, natural resources, and
the proceeds from the disposition or use of those lands – purportedly
ceded to the United States by the Republic of Hawaii – is for five
purposes, one of which remains the betterment of the conditions of
native Hawaiians.
The State’s memorandum in opposition to Plaintiffs’ motion for preliminary
injunction in the District Court uses the term “self-governance” twenty-one times.
Doc. 80.

20. 15
What does this term “self-governance” mean? Some advocates of “self-
governance” want to re-establish the Hawaiian monarchy as the separate and
independent government with which the United States had three treaties of friendship
and trade, dated 1826, 1849 and 1875, respectively. The State most certainly has no
authority to re-establish an independent, foreign government that has ceased to exist
for 123 years which once held sovereignty over the exact same territory which now
comprises the State itself.
But even if it did, there was no ancestral requirement for citizenship in the
Kingdom of Hawaii. If this is the intent of Act 195, clearly there should be no
ancestral requirement for voting in its constitutional convention. Moreover, if the
Kingdom of Hawaii were re-established, the State would immediately be faced with
a challenge to title of all 1.8 million acres of ceded land it acquired upon statehood.
Indeed, Act 195 itself questions title to this land in Section 1, as follows:
In section 5(f) of the Admission Act of 1959, Congress created what is
commonly known as the ceded lands trust. The ceded lands trust, consisting of
lands, including submerged lands, natural resources, and the proceeds fromthe
disposition or use of those lands – purportedly ceded to the United States by
the Republic of Hawaii – is for five purposes, one of which remains the
betterment of the conditions of native Hawaiians.
2011, Haw.Sess.L., Act 195, § 1 [emphasis added].
The justification for the use of the word “purportedly” there is either that the
Republic never properly transferred title to the public lands to the United States and
still retains it, or that the Republic never properly acquired title to the public lands

21. 16
and the Kingdom still retains it. Either way, if the United States did not acquire good
title, then it could not have transferred good title to the State and the title remains in
the name of the Republic or Kingdom of Hawaii, which would be re-established and
recognized by the State pursuant to Act 195.
So aside from the lack of authority of the State to create such an entity, it would
be catastrophically detrimental to the State’s interest to do so.
Clearly, “self-governance” of the native Hawaiian people means quasi-
independence similar to the status of recognized Indian tribes. This is the only
justification for Act 195. Several states have recognized Indian tribes that are not
recognized by the federal government. See Carcieri v. Salazar, 555 U. S. 379 (2009).
This is something that the State has authority to do. This is what they argue they are
doing and attempt to justify it as a political discrimination not a racial discrimination
as held in Morton v. Mancari, supra. Doc. 80, pp. 28-42.
C. The lack of a blood quantum is fatal to the State’s Indian tribe analogy.
The State made a similar argument in Rice v. Cayetano, supra. In that case,
Freddy Rice, a non-Hawaiian voter, challenged the “Hawaiians only” restriction of
voter eligibility for OHA trustees as being in violation of his Fourteenth Amendment
right to Equal Protection and his Fifteenth Amendment right to vote. With respect to
the Fourteenth Amendment challenge, he State made the same argument that the
discrimination was a political one rather than a racial one, as in Mancari, as follows:

22. 17
The most far reaching of the State’s arguments is that exclusion of
non-Hawaiians from voting is permitted under our cases allowing the
differential treatment of certain members of Indian tribes. The decisions
of this Court, interpreting the effect of treaties and congressional
enactments on the subject, have held that various tribes retained some
elements of quasi-sovereign authority, even after cession of their lands
to the United States. See Brendale v. Confederated Tribes and Bands of
Yakima Nation, 492 U.S. 408, 425 (1989) (plurality opinion)p Oliphant
v. Suquamish Tribe, 435 U.S. 191, 208 (1978). The retained tribal
authority relates to self-governance. Brendale, supra, at 425 (plurality
opinion). In reliance on that theory the Court has sustained a federal
provision giving employment preferences to persons of tribal ancestry.
Mancari, 417 U.S., at 553-555. The Mancari case, and the theory upon
which it rests, are invoked by the State to defend its decision to restrict
voting for the OHA trustees, who are charged so directly with protecting
the interests of native Hawaiians.
Rice v. Cayetano, supra, 528 U.S. at 518.
Justice Kennedy in the opinion of the court, joined by four other justices, did
not reach this argument because the Court held that Rice’s Fifteenth Amendment
right to vote was violated, because the OHA trustees are state officials. Id., p. 499.
However, Justice Breyer, joined by Justice Souter, filed a separate concurring
opinion, in which he would have rejected the Indian tribe analogy because of a lack
of a blood quantum.
[T]he statute defines the electorate in a way that is not analogous to
membership in an Indian tribe. Native Hawaiians,considered as agroup,
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

23. 18
(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.
I have been unable to find any Native American tribal definition that is
so broad. The Alaska Native Claims Settlement Act, for example,
defines a “Native” as “a person of one-fourth degree or more Alaska
Indian” or one “who is regarded as an Alaska Native by the Native
village or Native group of which he claims to be a member and whose
father or mother is . . . regarded as Native by any village or group” (a
classification perhaps more likely to reflect real group membership than
any blood quantum requirement). 43 U.S.C. § 1602(b).
Rice v. Cayetano, supra, 528 U.S. at 526 [Breyer, J., concurring].
Justice Breyer also noted that typically Indian tribes are allowed to determine
for themselves the qualifications for tribal membership, as follows:
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 definitionp and, as I have pointed out, it is not like any actual
membership classification created by any actual tribe.
Id., p. 527.
In fact, the analogy is even less valid than Justice Breyer imagined. Justice
Breyer notes that the number of “Hawaiians” who are not native Hawaiians is about
130,000. It is conceded by all parties in this case that the total number of “Hawaiians”
is actuallyapproximately500,000. The number ofnativeHawaiians is not known, but

24. 19
Justice Breyer’s estimate of 80,000 was probably high by a factor of two. Therefore,
the number of Hawaiians who are not native Hawaiians is very likely much closer to
460,000 than 130,000. Allowing these people to vote destroy’s the State’s Mancari
argument. The only way that the analogy can be properly applied is if voting is
limited to native Hawaiians.
D. Voting in the election should be limited to “native Hawaiians”
1. Allowing non-native Hawaiians to vote violates Equal
Protection
Indian tribes that are not recognized by the federal government can petition for
recognition pursuant to the Indian Reorganization Act. 25 U.S.C. §§ 476 and 477.
However, the definition of “Indians” in the Indian Reorganization Act who are not
members of a recognized tribe or descendants thereof residing on an Indian
reservation, is limited to “persons of one-half or more Indian blood,” 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.
25 U.S.C. § 479.

25. 20
Thus, if a group of Indians want recognition as an Indian tribe, initially only
those with “one-half or more Indian blood” would be recognized. This definition is
exactly the same as the definition of “native Hawaiian” in the HHCA. Yet under Act
195, the State would allow 460,000 non-native Hawaiians to vote in the election for
constitutional convention delegates.
The State argues against Plaintiffs’ claim of a right to vote as follows: “The
absurdity of allowing non-Hawaiians to participate in a process designed to facilitate
Native Hawaiian self-governance is so palpable that even strict scrutiny would be
satisfied.” Doc. 80, p. 16. The absurdity of allowing 460,000 non-native Hawaiians
to participate in a process designed to facilitate native Hawaiian self-government is
equally palpable.
Moreover, the disparityin treatmentofnativeHawaiians bytheStateofHawaii
in comparison to the treatment of Indians seeking recognition by the federal
government is a clear denial of native Hawaiians’ right to equal protection.
Section 6 of Act 195 provides that the Act is severable, as follows:
SECTION 6. If any provision of this Act, or the application thereof to
any person or circumstance is held invalid, the invalidity does not affect
other provisions or applications of the Act, which can be given effect
without the invalid provision or application, and to this end the
provisions of this Act are severable.
2011 Haw.Sess.L., Act 195, § 6.
So if the limitation of voter qualifications to Hawaiians is held invalid, that

26. 21
provision can be further limited to allow voting only by native Hawaiians. This is the
proper ultimate result in this case. The Act is valid only if voting is limited to native
Hawaiians.
A similar result, limiting voting for trustees to native Hawaiians only, may
have been appropriate if raised in Rice. But that issue was not raised by any of the
parties in that case.
2. The beneficiaries of HHCA and § 5(f) are native
Hawaiians.
The beneficiaries of the HHCA and § 5(f) trust, as established by Congress are
native Hawaiians having not less than one-half part of the blood. Native Hawaiians
like other Native Americans should have the right to manage and control their own
affairs, including land set aside by the government for their use and benefit, i.e. the
Hawaiian home lands and a pro rata portion of the § 5(f) trust lands. Hawaiians who
have no interest in these lands should not be allowed to negotiate with the State as to
the use and disposition of these lands.
The only reason that the State wants to include 460,000 non-native Hawaiians
in this process is to give it the opportunity to offer something to these Hawaiians who
are not beneficiaries so that they will out vote native Hawaiians in a settlement of
claims. Even while subsection 9 of Section 2 of Act 195 claims that the Act will not
affect native Hawaiians’ rights under HHCA, Section 3 of Act 195 contradicts this,

27. 22
as follows:
SECTION 3. The Hawaiian Homes Commission Act, 1920, shall be
amended, subject to approval by the United States Congress, if
necessary, to accomplish the purposes set forth in this Act in a manner
that is expeditious, timely, and consistent with the current needs and
requirements of the Native Hawaiian people and the current
beneficiaries of the Hawaiian Homes Commission Act, 1920.
2011 Haw.Sess.L., Act 195, § 3.
Section 1 of Act 195 notes that the State has already provided that the Island
ofKaho’olawewill be transferred to theHawaiian governing entitywhen established,
as follows:
Recognizing thelikelihood ofa reorganized NativeHawaiian governing
entity, the State has also provided for the transfer of the management
and control of the island of Kahoolawe and its waters to the sovereign
Native Hawaiian entity upon its recognition by the United States and the
State of Hawaii.
Act 195, § 1.
Clearly, the State is hoping that it can offer the Hawaiian home lands and
Kaho’olawe to a Hawaiian governing in exchange for a release of all claims to the
remaining 5(f) trust lands. This Hawaiians would be happy to accept because, at
present, they are not entitled to anything. Amici KEALOHA, a former OHA trustee,
is well aware of the futility of being out voted while trying to enforce native Hawaiian
rights to Hawaiian homes and 5(f).

28. 23
3. Native Hawaiians should have the right to decide for
themselves what qualifications should be imposed for
tribal membership.
As Justice Breyer pointed out in Rice, the most satisfactory option is to allow
Native Americans to decide for themselves what qualifications should be established
for membership in the group. This is the case for American Indians. It should also be
the case for native Hawaiians. The initial blood quantumfor American Indians is one-
half part. The initial blood quantum for native Hawaiians should be one-half.
Once a truly Native Hawaiian governing entity is established by native
Hawaiians they would very likely make provision for other Hawaiians to become
members of the entity just as American Indians do for tribal membership.
E. Amici support Appellants in their appeal seeking reversal of the order
denying preliminary injunction.
Several of the Plaintiffs who do not qualify to vote in this election seek the
right to do so. In this appeal, Appellants seek to enjoin the election process pending
this litigation by reversal of the order denying a preliminary injunction because they
believe the qualifications for voting are too restrictive. Amici support this injunction,
but not because the voting qualifications are too restrictive. Amici support this
injunction becausethevotingqualifications,allowing460,000non-nativeHawaiians,
are not restrictive enough. Amici assert that voting should be limited to native
Hawaiians.

29. 24
In either case, the likelihood of the present voter qualifications being limited
to Hawaiians, without a blood quantum, is extremely unlikely to pass Constitutional
muster in light of Rice v. Cayetano, supra. Since the likelihood of the present voter
qualifications being held valid is so slim, the Court should reverse the order of the
District Court denying the preliminary injunction seeking to enjoin the election from
proceeding further until the voter qualifications have been finally determined by the
courts.
Dated: Honolulu, Hawaii, November 30, 2015.
/s/ Walter R. Schoettle
WALTER R. SCHOETTLE,
Attorney for Amici,
SAMUEL L. KEALOHA, JR., et al.

30. 25
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,
TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 6078 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: this
brief has been prepared in a proportionally spaced typeface using WordPerfect,
Version X3, 14 point, Times New Roman font.
Dated: Honolulu, Hawaii, November 30, 2015.
/s/ Walter R. Schoettle
WALTER R. SCHOETTLE,
Attorney for Amici,
SAMUEL L. KEALOHA, JR., et al.

31. 26
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on November 30, 2015.
I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
Dated: Honolulu, Hawaii, November 30, 2015.
/s/ Walter R. Schoettle
WALTER R. SCHOETTLE