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HONOLULU (AP) — A federal judge said he will rule on Friday whether an election process underway for Native Hawaiians can proceed.

U.S. District Judge J. Michael Seabright heard arguments on Tuesday in a lawsuit filed in August that says it’s unconstitutional for the state to be involved in a race-based election. The state argues that while it played a part in compiling a roll of Native Hawaiians eligible to participate, it’s not involved in next month’s vote to elect delegates for a convention to come up with a self-governance document for Native Hawaiians to ratify.

The plaintiffs include two non-Hawaiians who aren’t eligible for the roll, two Native Hawaiians who say their names appear on the roll without their consent and two Native Hawaiians who don’t agree with a declaration to “affirm the un-relinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-determination.”

One of the plaintiffs’ attorneys, Bob Popper from Washington, D.C.-based conservative group Judicial Watch, told Seabright the election will have a big impact on the state of Hawaii and some of his clients won’t be allowed to participate.

Seabright countered that the elections aren’t for any public office and are “more akin to a private election than to a public election.”

Native Hawaiians are the last remaining indigenous group in the U.S. that hasn’t been allowed to establish its own government. Former U.S. Sen. Daniel Akaka spent about a dozen years trying to get a bill passed that would give Native Hawaiians the same rights already extended to many Native Americans and Alaska Natives.

In 2011, the state passed a law recognizing Hawaiians as the first people of Hawaii and laid the foundation for Native Hawaiians to establish their own government. The governor appointed a commission to produce the roll.

The Native Hawaiian Roll Commission “does not conduct elections, nor set election ability criteria,” attorneys for the defendants, including the state, wrote in response to the lawsuit. An independent organization, Nai Aupuni, determined election criteria, the defendants said.

The lawsuit points to nearly $2.6 million from the Office of Hawaiian Affairs, a public agency tasked with improving the wellbeing of Native Hawaiians, as evidence of the state’s involvement.

Nai Aupuni is a private, nonprofit corporation whose grant agreement specifies the Office of Hawaiian Affairs won’t have any control, Nai Aupuni attorney Bill Meheula said. “What we’ve got here is indigenous people trying to pursue self-determination, which is their inherent right under federal law,” he said.

The U.S. Department of the Interior, which recently outlined a proposal for a possible government-to-government relationship if Native Hawaiians want one, took the judge up on his invitation to weigh in on the lawsuit. The department urged the judge not to grant an injunction and pointed out that American Indian tribes hold elections that exclude non-natives.

Nai Aupuni leaders say it’s crucial that the election moves forward because it presents a unique opportunity that has evaded Native Hawaiians for more than 100 years.

“If this process is stalled in the courts, the (roll commission) list will become stale, (Nai Aupuni’s) funding may not be available and if history is a useful compass — it may be decades before funding, a similarly substantial roll, state and federal sensitivity and self-determination zeal among Native Hawaiians converge to bring about another such opportunity,” attorneys for Nai Aupuni wrote in court documents.

Seabright said he will give his ruling from the bench on Friday, with an explanation of his reasoning. He will issue a detailed written order later, but he doesn’t know if it will be ready before the election begins.


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