WASHINGTON – A bill to authorize a process for establishing a Native Hawaiian governing entity was filed June 6 for a “cloture” vote in the Senate June 8, according to Noe Kalipi, of Sen. Daniel Akaka’s staff. The Hawaii Democrat is the lead sponsor of the bill, informally known as the Akaka Bill and now numbered Senate Bill 3064 in the Senate.
Under Senate rules and in Senate parlance, the bill, once filed by Senate Majority Leader Bill Frist, R-Tenn., must “ripen” for two days prior to a “cloture” vote. Cloture, an alteration of Old French closure, is a parliamentary method of closing debate and moving to a vote. This initial cloture vote is necessary because opponents have denied the unanimous consent of the Senate required to move the bill off the Senate calendar. Significantly, it takes a supermajority of four-fifths, or 60 votes in the Senate, to pass a cloture vote. The underlying bill, by contrast, requires a simple majority of 51 votes to pass. Kalipi expressed cautious optimism that the bill’s backers will get a supermajority on cloture.
Then the bill is expected to be filibustered, as opponents seek to prevent a vote of the full Senate by prolonging debate. Ending the filibuster will require a second cloture vote, Kalipi said, again expressing careful confidence that the bill will pass a second cloture vote. Only then can it move on to a floor debate and a vote of the full Senate.
Kalipi said the bill must submit to this circuitous process because opponents know it has the simple majority to pass a final vote of the full Senate. They hope the supermajority of 60 votes for cloture will not transpire.
As difficult as the parliamentary process for bringing the Akaka Bill to a final vote in the Senate may be, it pales in comparison with obstacles the proposal has already transcended.
In 2004, in an effort to clear the way for Senate passage of a Gila River water rights bill sponsored by Sen. Jon Kyl, R-Ariz., New Mexico Republican Pete Domenici brokered a deal among Senate leadership (Frist and former Sen. Tom Daschle, D-S.D., then-minority leader), the Hawaii delegation, Kyl and Sen. Tim Johnson, D-S.D.
In return, the no-less-vital Akaka Bill was to have been brought up on or before Aug. 7, 2005 – eve of the Senate’s traditional August recess. But in the interim, Oklahoma Republican Tom Coburn won election to the Senate. Coburn argued that he wasn’t in Congress when the deal was struck and couldn’t be bound by it.
Once the 108th Congress ended and the 109th began in 2005, Coburn’s unanticipated recalcitrance to the Domenici-brokered deal meant Frist could not bring the bill up by unanimous consent. Instead, Frist could fulfill his commitment only by filing a motion for cloture on July 29, 2005. Congress recessed, and in the interim Hurricane Katrina struck. By common consent, the Akaka Bill again got sidelined as Congress turned its full attention to the catastrophe on the Gulf Coast.
But also in July of 2005, the White House sent a letter to Sen. John McCain, R-Ariz., chairman of the Senate Committee on Indian Affairs, identifying its concerns with the Akaka Bill. Based on that letter, Akaka and the bill’s other Democratic champion from Hawaii, Sen. Daniel K. Inouye, joined negotiations between their staffs; the Office of Management and Budget; the Department of Justice; Hawaii Attorney General Mark Bennet; and facilitating staff from the Senate Committee on Indian Affairs. They eventually strengthened the bill by reaching agreements that met the concerns each party still had with it.
One of those concerns was with military preparedness in the Pacific – would a Native Hawaiian governing entity be able to impede the U.S. military presence in Hawaii? That was never a possibility, according to Patricia Zell of Zell & Cox Law in Washington, but to be doubly sure the bill addresses the issue directly now. Another was with gaming – would a Native Hawaiian entity be able to establish gaming in Hawaii or elsewhere? Zell said that too was never a possibility under any version of the bill, but to be safe its backers added surplus language to say “no way, never, nowhere” will the Native Hawaiian governing entity engage in gaming.
Finally, the Department of Justice was wary of claims against the federal government for fiscal or asset mismanagement, on the model of the long-running Cobell v. Norton trust funds lawsuit, and asked that the bill abrogate any claims against the federal government by the governing entity upon enactment. Akaka and Inouye rejected the suggestion, but did agree that such claims would be subject to a 20-year statute of limitations once the Native Hawaiian governing entity is established in law.
These late agreements did not win the bill the active backing of President George W. Bush. But Zell said that the bill’s supporters had something to celebrate when the administration made it known the late agreements had answered its objections to the bill.
The bill as introduced in the 109th Congress, S. 147, passed the Senate Committee on Indian Affairs in March 2005 “with an amendment in the nature of a substitute.” The committee reported the bill, favorably and “as amended,” to the full Senate. A second substitute amendment, agreed to without objection by the Senate Committee on Indian Affairs, came to include clauses that reflected the agreements hammered out later among Congress, the Bush administration and the state of Hawaii in August and September of 2005. An important additional change to those already reviewed involves the recurring phrase “the United States has a special political and legal relationship to promote the welfare of the native people of the United States, including Native Hawaiians” – previous versions used the word “responsibility” in place of the present “relationship.” Because introducing a new bill halfway through the second session of the 109th Congress would have been impractical, Kalipi said, Akaka eclipsed S. 147 with the second “amendment in the nature of a substitute,” which became S. 3064 on May 25.