Akaka Bill

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The Native Hawaiian Government Reorganization Act of 2009

S1011/HR2314, is a bill before the 111th Congress. It is commonly known
as the Akaka Bill after Senator Daniel Akaka of Hawaii, who has proposed
various forms of this bill since 2000.
The bill proposes to establish a process for indigenous Native Hawaiians
to gain federal recognition similar to an Indian tribe. However, the bill
prohibits indigenous Native Hawaiians from gaming and other benefits
available to federally recognized Indian tribes. The 2009 House version of
the bill prohibits indigenous Native Hawaiians from pursuing their claims in
the courts and arguably legitimizes past transfers of Hawaiian land that
would not have been legitimate for Indian Tribes. (Non intercourse act not
applicable to Hawaiian land transfers.) The most updated Senate version
however allows Native Hawaiians to pursue claims in court.[1] On
December 16, 2009 a Congressional House Committee passed an
unamended version of the Akaka Bill. On the following day, the Senate
Indian Affairs Committee approved the amendments in S. 1011, the
Senate version of the Native Hawaiian Government Reorganization Act. As
of January 10, 2009, H.R. 2314 is not completely consistent with S. 1011.

Contents [hide]
1
Purpose
2
Proposed
provisions
3
Support
4
Opposition
5
Previous
 versions
6 See
also
7
References
8
External links
[edit]
Purpose
The stated purpose of the Akaka Bill is "to provide a process for the
reorganization of the single Native Hawaiian governing entity and the
reaffirmation of the special political and legal relationship between the
United States and that Native Hawaiian governing entity for purposes of
continuing a government-to-government relationship"[2].
The government that the Akaka Bill intends to reorganize is identified as
the Kingdom of Hawaii in the first paragraphs of Indian Affairs Committee
Report 108-85.[3].
[edit]
Proposed provisions
The recognition proposed in the Akaka bill is somewhat similar to the
recognition that federally recognized Tribes in the continental 48 states
and Alaska have. However, unlike those groups, the current version of the
Akaka Bill prohibits Hawaiians from establishing casinos under current
laws without banning the establishment of casinos under future
negotiations (Section 9a), from participation in programs and services
enjoyed by Indians (Section 9f), from being included on the Secretary of
the Interior's list of Tribes eligible for federal benefits because of their
status as Indians ("Public Law 103-454, 25 U.S.C. 479a, shall not apply."),
and from pursuing claims against the United States for past wrongs in
court Also, unlike recognized Tribes in the continental 48 states and
Alaska, the Akaka Bill does not require any of the same requirements for
tribal recognition. The Bureau of Indian Affairs requires the satisfaction of 7
criteria before recognizing a tribe,[4] none of which are present in the
Akaka Bill. They are:
▪ 83.7a: The petitioner has been identified as an American Indian entity on
a substantially continuous basis since 1900.
▪ 83.7b: A predominant portion of the petitioning group comprises a
distinct community and has existed as a community from historical
times to the present.
▪ 83.7c: The petitioner has maintained political influence or authority over
its members as an autonomous entity from historical times until the
present.
▪ 83.7d: A copy of the group's present governing documents including its
membership criteria.
▪ 83.7e: The petitioner's membership consists of individuals who descend
from a historical Indian tribe or from historical Indian tribes which
combined and functioned as a single autonomous political entity.
▪ 83.7f: The membership of the petitioning group is composed primarily of
persons who are not members of an acknowledged North American
Indian tribe.
▪ 83.7g: Neither the petitioner nor its members are the subject of
congressional legislation that has expressly terminated or forbidden
the federal relationship.
The current version of the bill provides for negotiations between the United
States and the proposed new Hawaiian government. The bill provides for
the new Hawaiian government to negotiate for land, rights,and resources,
however, the bill does not indicate what the Federal government will be
negotiating for, that is what it is Hawaiians have that the Federal
government will expect in return at the negotiating table. Typically
however, in Tribal/U.S. negotiations, Indians give up their legal and other
grievances against the United States in exchange for a portion of disputed
land, rights, and resources. (See United States Code Title 25 Chapter 19
for examples.)
Section 2 of findings is based primarily upon the Apology Resolution of
1993.
Section 3 defines "Native Hawaiian" as:
(i) an individual who is 1 of the indigenous, native people of Hawaii and
who is a direct lineal descendant of the aboriginal, indigenous, native
people who--
(I) resided in the islands that now comprise the State of Hawaii on or
before January 1, 1893; and
(II) occupied and exercised sovereignty in the Hawaiian archipelago,
including the area that now constitutes the State of Hawaii; or
(ii) an individual who is 1 of the indigenous, native people of Hawaii and
who was eligible in 1921 for the programs authorized by the Hawaiian
Homes Commission Act (42 Stat. 108, chapter 42) or a direct lineal
descendant of that individual.
Section 5 establishes the "United States Office for Native Hawaiian
Relations". In a revision to a previous version of the Akaka Bill, S.147,[5],
the new S.310 no longer requires consultation with the Governor of the
State of Hawaii explicitly, but only the "State of Hawaii".
Section 6 establishes the "Native Hawaiian Interagency Coordinating
Group" for coordination of various federal agencies and policies, with the
specific exclusion of the Department of Defense.
Section 7 establishes a commission of 9 members to certify which adults
meet the definition of “Native Hawaiian" established in Section 3(10), and
to prepare and maintain a roll of adult "Native Hawaiians" by that definition.
Originally requiring specific ancestry to be a member of the commission in
S.147, S.310 only requires "(i) not less than 10 years of experience in the
study and determination of Native Hawaiian genealogy; and (ii) an ability to
read and translate into English documents written in the Hawaiian
language." The bill cites the overthrow of the Kingdom of Hawaii, which
was multi-racial from its inception, but it does not provide any opportunity
for non-Native Hawaiians as defined by the law to participate in the new
governing entity.[6]
Once a roll is established, those on the roll will establish a "Native
Hawaiian Interim Governing Council", who would establish a permanent
form of government. The bill provides that governing documents may, but
do not have to be approved by a majority of the people on the roll, and that
the form of government chosen "provide for the protection of the civil rights
of the citizens of the Native Hawaiian governing entity and all persons
affected by the exercise of governmental powers and authorities by the
Native Hawaiian governing entity", but does not enumerate if equal
protection on the basis of race is one of those civil rights.
Section 8 defers any settlement of issues such as the transfer of lands, the
exercise of governmental authority, civil and criminal jurisdiction, and
"grievances regarding assertions of historical wrongs committed against
Native Hawaiians by the United States or by the State of Hawaii" to future
negotiations between the newly organized Native Hawaiian Government
and the United States and the State of Hawaii. Also provides:” Nothing in
this Act is intended to create or allow to be maintained in any court any
potential breach-of-trust actions, land claims, resource-protection or
resource-management claims, or similar types of claims brought by or on
behalf of Native Hawaiians or the Native Hawaiian governing entity for
equitable, monetary, or Administrative Procedure Act-based relief against
the United States or the State of Hawaii, whether or not such claims
specifically assert an alleged breach of trust, call for an accounting, seek
declaratory relief, or seek the recovery of or compensation for lands once
held by Native Hawaiians. Also Provides: "Nor shall any preexisting waiver
of sovereign immunity (including, but not limited to, waivers set forth in
chapter 7 of part I of title 5, United States Code, and sections 1505 and
2409a of title 28, United States Code) be applicable to any such claims.
This complete retention or reclaiming of sovereign immunity also applies to
every claim that might attempt to rely on this Act for support, without
regard to the source of law under which any such claim might be
asserted." And Also:” It is the general effect of section 8(c)(2)(B) that any
claims that may already have accrued and might be brought against the
United States, including any claims of the types specifically referred to in
section 8(c)(2)(A), along with both claims of a similar nature and claims
arising out of the same nucleus of operative facts as could give rise to
claims of the specific types referred to in section 8(c)(2)(A), be rendered
nonjusticiable in suits brought by plaintiffs other than the Federal
Government."
Section 9 Provides: "Native Hawaiians may not conduct gaming activities"
and; "the Secretary (of the Interior of the United States) shall not take land
into trust on behalf of individuals or groups claiming to be Native Hawaiian,
and; " (c) Real Property Transfers- The Indian Trade and Intercourse Act
(25 U.S.C. 177), does not, has never, and will not apply after enactment to
lands or lands transfers present, past, or future, in the State of Hawaii. If
despite the expression of this intent herein, a court were to construe the
Trade and Intercourse Act to apply to lands or land transfers in Hawaii
before the date of enactment of this Act, then any transfer of land or
natural resources located within the State of Hawaii prior to the date of
enactment of this Act, by or on behalf of the Native Hawaiian people, or
individual Native Hawaiians, shall be deemed to have been made in
accordance with the Indian Trade and Intercourse Act and any other
provision of Federal law that specifically applies to transfers of land or
natural resources from, by, or on behalf of an Indian tribe, Native
Hawaiians, or Native Hawaiian entities." and;” nothing in this Act provides
an authorization for eligibility to participate in any Indian program."
[edit]
Support
Supporters of the bill include:
1. Democratic President Barack Obama
2. Hawai`i's Democratic congressional delegation Senators Daniel Akaka
and Daniel K. Inouye and Representatives Neil Abercrombie and
Mazie Hirono.
3.A Bi-partisan group of Congressional co-sponsors Senators Dorgan (D-
ND), Cantwell (D-WA), Coleman (R-MN), Stevens (R-AK),
Murkowski (R-AK), Smith (R-OR), and Dodd (D-CT).
4. Hawai`i's Republican Governor Linda Lingle.[7]
5.Hawai`i's State legislature, which has unanimously passed at least three
resolutions supporting federal recognition for Native Hawaiians.
6.Hawai`i's Attorney General Mark Bennett.[8]
7.The National Congress of American Indians, the oldest and largest
national Native American organization.<National Congress of
American Indians, 2005.>
8.The Alaska Federation of Natives, the largest organization representing
the Native people of Alaska.
9.The National Indian Education Association.
10. The American Bar Association.
11. The Japanese American Citizen League.
12. Those who seek legislation to provide federal recognition for Native
Hawaiians to ensure that the native (especially at-risk) [9] population
continues to receive services in health care, housing, education, job
training, employment, culture, and the arts.
Supporters of the bill seek to protect the programs assisting Native
Hawaiians, such as the Office of Hawaiian Affairs and the Kamehameha
Schools, as well as health-care and housing for the Hawaiian population.
Senator Akaka said, as he introduced the 2007 version on the
Congressional floor,
"The legislation I introduce today seeks to build upon the foundation of
reconciliation. It provides a structured process to bring together the people of
Hawai`i, along a path of healing to a Hawai`i where its indigenous people are
respected and culture is embraced. Through enactment of this legislation, we
have the opportunity to demonstrate that our country does not just preach its
ideas, but lives according to its founding principles. As it has for America's other
indigenous peoples, I believe the United States must fulfill its responsibility to
Native Hawaiians." [10]
In response to opponents who state the bill is race-based, supporters of
the bill - including other Congressional delegates, Governor Lingle, Hawai`i
Attorney General Bennett, Native American groups, and Asian American
groups - argue that rejecting the bill would be racially discriminatory.
Supporters also argue that the State legislature, which has unanimously
supported the bill, is bi-partisan, multiracial, and multicultural and, as
Hawai`i residents, closely understand the needs of the Native Hawaiian
community. In support of the bill, Senator Inouye responded that failing to
pass the bill would discriminate against the Native Hawaiians, for
Congress had already provided federal recognition of the other indigenous
and aboriginal peoples of America. He also argued that the Rice v.
Cayetano case cited by opponents was irrelevant to the Akaka Bill,
reminding Congress that current Chief Justice John Roberts himself had
written the State brief and had argued that Native Hawaiians were
aboriginal and indigenous people and could be recognized as such by
Congress.[11] Senator Akaka had also asserted in his introduction of the
bill:
This measure does not result in race discrimination. But discrimination will occur
if this measure is not passed. It is undisputed that Native Hawaiians are the
aboriginal, indigenous people of Hawaii. Yet some of my colleagues want to
discriminate against them and treat them differently from other Native Americans
-- the American Indian and the Alaska Native.
In response to opponents citing Congressional requirements for Native
Americans and arguing that Native Hawaiians don’t meet such
requirements, Governor Lingle and Hawai`i Attorney General Bennett
responded that the bill did not authorize Native Hawaiian participation in
American Indian programs, that Native Americans and Alaska Natives
support the bill, that to suggest otherwise resulted in placing native groups
against each other, that barring Native Hawaiians from programs that
provided to other natives was offensive.[8] In addition, they also wrote:[8]
“The arguments against recognition for Native Hawaiians because
Hawaiians cannot satisfy the requirements Congress set out for the
recognition of Native Americans (in the Indian Reorganization Act of 1934)
are simply not relevant because Congress has not and need not include
those conditions in S. 147. Native Hawaiians have always had to rely on a
separate bill for recognition because the Indian Reorganization Act of 1934
was never intended to be the means of providing recognition for Native
Hawaiians –- it literally only applies to the native people of the "continental
United States." See 25 U.S.C. § 473; 25 C.F.R. § 83.3....
Rather than crack the "melting pot" that is Hawaii (an outcome opponents
of S. 147 purport to fear), passage of S. 147 will finally give official and
long overdue recognition to the losses Hawaiians have suffered -- the
blurring, if not diminution, of Hawaiians’ native identity; the erosion of their
confidence as a people; the destruction of any semblance of self-
determination and self-governance; and, as the United States Supreme
Court put it, the loss of a "culture and way of life." Finally, Native Hawaiians
will have restored to them what they lost more than a hundred years ago --
status as a people and recognition of their roots.
In a 2005 interview,[12] Senator Akaka said that the bill, "creates a
government-to-government relationship with the United States” as it
provides a legal parity similar to that of native tribal governments in the
contiguous states and Alaska. When the reporter commented that the bill
could potentially lead to independence, Senator Akaka replied "that could
be" but that it would be up to future generations to decide. Some who
oppose the bill cite this statement as indicative of its potential support of
secession of a Native Hawaiian government from the United States.
However, the 2007 version of the bill has specified that secession is not a
provision of the bill.[13]
[edit]
Opposition
Opposition to the Akaka Bill includes:
1.Those who believe that the bill is unconstitutionally race-based;
2.Those who believe the 'tribe' created via the Akaka Bill would shield
corrupt trustees from prosecution;
3.Those who believe that a school voucher system would allow
Kamehameha Schools to serve all interested Hawaiian students and
also admit non-Hawaiians thus eliminating the race-discrimination
basis of the lawsuits;
4.Those who believe that it could begin the process of secession of a
single racial group from the United States;
5.Those who believe that it could thwart the process of secession of
Hawaii from the United States and the restoration of an independent
Hawaiian nation controlled by native Hawaiians (native Hawaiian
sovereignty activists);
6.The United States Commission on Civil Rights;
7. The George W. Bush Administration, which issued a letter arguing
against the earlier version of the bill;[14]
8.Aloha for All, a Hawaii based civil rights group;
9.The Grassroot Institute of Hawaii, a Hawaii-based think-tank
10. Republican Presidential candidate Senator John McCain
11. Congressman Ron Paul. He along with several other
Representatives wrote a letter to the Speaker of the House and
Majority Leader asking them to kill the Akaka Bill. The letter entailed
three reasons for killing the bill: (1) The Constitution does not allow
for a separate, sovereign, race based government; (2) Practical
issues have not been addressed such as how businesses could
fairly compete with each other if one must for example pay state
taxes and another must not; (3) Historical commitments do not
support such a bill. For example when Hawaii became a state there
was broad congressional consensus and assurances given by the
State of Hawaii that Native Hawaiians would not seek to be treated
as a separate racial group and transformed into an "Indian tribe".
Native Hawaiian sovereignty activists who oppose the bill believe that it
blocks their attempts to establish their independence from the federal
government and disregards 1993 Public Law (103-150), in which Congress
apologized "for the overthrow and the deprivation of the rights of Native
Hawaiians to self-determination." Washington-based constitutional scholar
Bruce Fein has outlined a number of counter-arguments disputing the
accuracy of the assertions made in the Apology Resolution, stating "The
apology wrongly insinuates that the overthrown 1893 government was for
Native Hawaiians alone".[15]
In 2006, the United States Commission on Civil Rights held hearings on
the Akaka bill, and published a report recommending strongly against it.
The report states in part:
The Commission recommends against passage of the Native Hawaiian
Government Reorganization Act of 2005 (S. 147) as reported out of committee
on May 16, 2005, or any other legislation that would discriminate on the basis of
race or national origin and further subdivide the American people into discrete
subgroups accorded varying degrees of privilege.
Some opponents believe that programs maintained exclusively for Native
Hawaiians, such as the Office of Hawaiian Affairs and the Kamehameha
Schools, are race-based and discriminatory and see the Akaka bill as an
attempt to subvert the February 23, 2000 U.S. Supreme Court decision in
Rice v. Cayetano, which ruled that limiting participation in OHA elections to
Native Hawaiians was an unconstitutional restriction on the basis of race.
Some opponents are also skeptical of the bill’s language disallowing
casinos or other gaming in Hawai`i, since although it denies the newly
created government "inherent" authority to conduct gaming, it leaves that
issue open to future negotiation.
In May 2006, Senator Akaka began a run of fifteen daily speeches on the
issue to gain support for a cloture vote on the bill, after the Commission on
Civil Rights report recommended against the bill. Opponents of the Akaka
bill have responded to his daily speeches, as well as to the arguments in
favor made by other politicians.
Regarding the latest version of the bill, S.310, Akaka's website states,
"This language has been publicly available since September 2005 and has
been widely distributed." However, opponents note, S.147, which failed to
get enough votes for cloture on June 8, 2006, did not include the revisions
now present in S.310.
In 2007, at a hearing before the Senate Committee on Indian Affairs,
Principal Deputy Associate Attorney General Gregory Katsas stated:
By dividing government power along racial and ancestral lines, S. 310 (the bill)
would represent a significant step backwards in American history and would
create far greater problems than those it might purport to solve [16]
[edit]
Previous versions
The Akaka Bill was previously introduced, in different forms, on the
following occasions:
▪ From the 106th Congress:
▪ S. 2899 (July 20, 2000)
▪ H.R. 4904 (July 20, 2000)
▪ 107th Congress:
▪ S. 81 (January 22, 2001)
▪ H.R. 617 (February 14, 2001)
▪ S. 746 (April 6, 2001)
▪ S. 1783 (December 7, 2001)
▪ 108th Congress:
▪ S. 344 (February 11, 2003)
▪ H.R. 665 (February 11, 2003)
▪ H.R. 4282 (May 5, 2004)
▪ 109th Congress:
▪ S. 147 (January 25, 2005)
▪ H.R. 309 (January 25, 2005)
▪ S. 3065 (May 25, 2006)
▪ 110th Congress:
▪ S. 310 (January 17, 2007)
▪ H.R. 505 (January 17, 2007)
[edit]
See also