Akaka Bill

 

This article documents proposed legislation that is currently being considered. Information may change rapidly as the course of legislation progresses.

The Native Hawaiian Government Reorganization Act of 2007 (S. 310, H.R. 505), a bill currently before the United States Congress, is commonly known as the Akaka Bill after U.S. Senator Daniel Akaka, D-HI, who has proposed various forms of this bill since 2000. The Akaka Bill proposed between 2000 and the present seeks to establish a process for Native Hawaiians to gain federal recognition similar to the recognition that some Native American tribes currently possess.^[1]

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 paragraph of Indian Affairs Committee Report 108-85.^{[citation needed]}

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 while still leaving open claims issues for future negotiations (Section 8. Claims - defers settlement of claims to negotiations). 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,^[3] 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 concessions such as those mentioned in the bill. (See United States Code Title 25 Chapter 19 for an example.)

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,^[4], 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." Although the bill cites the overthrow of the Kingdom of Hawaii, which was multi-racial from its inception, it does not provide for other people of the Kingdom any opportunity to participate in the new governing entity.

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 requires that governing documents 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."

Support for the Bill

Supporters of the bill include:

1. Hawai`i's Democratic congressional delegation Senators Daniel Akaka and Daniel K. Inouye and Representatives Neil Abercrombie and Mazie Hirono.
2. 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).
3. Hawai`i's Republican Governor Linda Lingle.^[5]
4. Hawai`i's State legislature, which has unanimously passed at least three resolutions supporting federal recognition for Native Hawaiians.
5. Hawai`i's Attorney General Mark Bennett. ^[6]
6. The National Congress of American Indians, the oldest and largest national Native American organization.<National Congress of American Indians, 2005.>
7. The Alaska Federation of Natives, the largest organization representing the Native people of Alaska.
8. The National Indian Education Association.
9. The American Bar Association.
10. The Japanese American Citizen League.
11. Those who seek legislation to provide federal recognition for Native Hawaiians to ensure that the native (especially at-risk) ^[7] 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." ^[8]

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. ^[9] 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. ^[10] In addition, they also wrote:^[11]

“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]

Opposition to the Bill

Opposition to the Akaka Bill includes:

1. Those who believe that the bill is unconstitutionally race-based;
2. Those who believe that it could begin the process of secession of a single racial group from the United States;
3. 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);
4. The United States Commission on Civil Rights;
5. The administration under President George W. Bush, which issued a letter arguing against the earlier version of the bill;^{[citation needed]}
6. Aloha for All, a Hawaii based civil rights group;
7. The Grassroot Institute of Hawaii, a Hawaii based think-tank

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".^[14]

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 of 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^[15]

Previous version of the Akaka Bill

Previous forms of the bill are:

S 2899IS 106th Congress July 20, 2000

HR 4904IH 106th Congress July 20, 2000

HR 4904RH 106th Congress Sept 26, 2000

S 2899RS 106th Congress Sept 27, 2000

HR 4904PCS 106th Congress Sept 27, 2000

HR 4904EH 106th Congress Oct 2, 2000

S 81 IS 107th Congress Jan 22, 2001

HR 617 IH 107th Congress Feb 14, 2001

S 746 IS 107th Congress Apr 06, 2001

HR 617 RH 107th Congress Jul 16, 2001

S 746 RS 107th Congress Sep 21, 2001

S 1783IS 107th Congress Dec. 07, 2001

S 344 IS 108th Congress Feb 11, 2003

HR 665 IH 108th Congress Feb 11, 2003

S344 amdt 108th Congress June 27, 2003

S344 amdt 108th Congress April 07,2004

HR 4282IH 108th Congress May 5, 2004

S 344 RS 108th Congress Sept 07, 2004

HR 4282RH 108th Congress Oct 6, 2004

S 147 IS 109th congress Jan 25, 2005

HR 309 IH 109th Congress Jan 25, 2005

S 147 RS 109th Congress March 9, 2005

S147 amdt 109th Congress Sept 28, 2005

S 3064IS 109th Congress May 25, 2006

S 310 IS 110th Congress Jan 17, 2007

HR 505 IH 110th Congress Jan 17, 2007

HR 505 RH 110th Congress May 2, 2007

S 310 RS 110th Congress May 10, 2007

( source; HTTP://Thomas.loc.gov)

See also

• Hawaiian sovereignty movement

Notes

References

• Faleomavaega, Eni F. H. August 28, 2000. Statement of the Honorable Eni F. H. Faleomavaega, U.S. Congressman, American Samoa. Joint Congressional Hearings on S.2899 and H.R. 4904, The Native Hawaiian Recognition Bill, Honolulu, Hawai`i.
• National Asian Pacific American Legal Consortium. September 9, 2003. “NAPALC Supports Legislation Recognizing Native Hawaiians.” Press Release.

From Senator Akaka's website

• “Now’s the right time to push the Akaka Bill,” April 29, 2007, ‘’Honolulu Advertiser,’’ editorial.
• “Optimism, patience needed for Akaka Bill,” April 30, 2007, ‘’Honolulu Star-Bulletin,’’ editorial.
• United States. Cong. Senate. 110th Congress, 1st Session. S.310/H.R. 505, Summary of the Native Hawaiian Government Reorganization Act of 2007 on the Website of U.S. Senator Daniel Akaka (D-Hawaii).
• Camire, Dennis. April 27, 2007. “U.S. Senate committee sets Akaka bill hearing.” ‘’Honolulu Advertiser.’’

External links

• "The Akaka bill — What would it mean for Hawai'i?" Special article from the Honolulu Advertiser, April 10, 2005

Support:

• additional links. Website dedicated to federal recognition of Native Hawaiians.
• Betterment for Hawaiians Mandated by Law, by Haunani Apoliona and Clyde W. Namu'o, "Honolulu Advertiser," January 12, 2007.
• Akaka Bill Opponents Need to Get Real, Visit Hawaiian Communities By Oswald K. Stender, 9/9/2005, Hawaii Reporter.”
• Article suppoting the Akaka Bill, by Jon M. Van Dyke, Professor of Law at the William S. Richardson School of Law at the University of Hawai`i at Manoa.
• Questions and Answers about the Akaka Bill. From the Honolulu Advertiser.

Opposition:

• CNHA Exposed Research and articles critical of the Council for Native Hawaiian Advancement and their advocacy of the Akaka bill.
• Correcting Akaka, Informational page presented by the Grassroot Institute of Hawaii.
• Two articles, written from a Native Hawaiian perspective, addressing the 2002 version of the bill: "The Akaka Bill and Hawaiian Self=Determination" by Anne Keala Kelly; "Taking the Apology Seriously" by J. Kahaulani Kauanui. Honolulu Weekly. January 30, 2002.
• Native Hawaiian Birthright Suspect, by Jere Krischel, Grassroot Institute of Hawaii
• Hawaii Reporter, Anti-Akaka Bill article written by U.S. Senator Jon Kyl (R-Arizona).
• E Pluribus Unum? Not in Hawaii Anti-Akaka Bill article written by former senators for Washington and Colorado.
• StopAkaka.com Website by Native Hawaiians against the Akaka Bill.

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