WASHINGTON - After a year and a half of delicate maneuvers designed to
navigate the Akaka Bill through the 108th Congress with a minimum of stormy
weather, its sponsors turned in a virtuoso job of sailing close to the wind
without quite capsizing at an April 21 business meeting of the Senate
Indian Affairs Committee on S. 344.
The reason for the meeting was to report Senate Bill 344 (commonly referred
to as the Akaka Bill from its lead sponsor, Sen. Daniel Akaka, D-Hawaii) to
the full Senate a second time, in an amended version this time around.
According to the initial statement of Pat Zell, the committee's Democratic
chief of staff, the amended version addresses the concerns of the Bush
administration, and in particular the Interior Department, with the
original version of the bill that would extend federal recognition to
Native Hawaiians. Zell presented the new bill to the committee in narrative
form. Under questioning however from Sen. Ben Nighthorse Campbell, R-Colo.,
the committee chairman, she revised her estimate of Interior's enthusiasm
downward by noting that only "most" of its concerns with the original bill
had been met. Neither Interior nor the Justice Department has endorsed the
bill, though Zell said their concerns contributed to the revision.
Senate Amendment 3043, available on the Internet at http://capwiz.com/
was substituted favorably (in parliamentary jargon) for S. 344 by vote of
the committee April 21. It retains the same official long title as the
original: "A bill expressing the policy of the United States regarding the
United States relationship with Native Hawaiians and to provide a process
for the recognition by the United States of the Native Hawaiian governing
entity, and for other purposes."
But the new short title tells a tale of sea-changes that have alarmed some
indigenous Hawaiians. Instead of unamended S. 344's "Native Hawaiian
Recognition Act of 2003," the amended short title is "Native Hawaiian
Government Reorganization Act of 2004."
Still more complex is the amended purpose of the bill. S. 344 offered a
relatively straightforward, "The purpose of this Act is to provide a
process for the recognition by the United States of the Native Hawaiian
governing entity for purposes of continuing a government-to-government
relationship." Senate Amendment 3043 substitutes: "The purpose of this Act
is to provide a process for the reorganization of the Native Hawaiian
governing entity and the reaffirmation of the political and legal
relationship between the United States and the Native Hawaiian governing
entity for purposes of continuing a government-to-government relationship."
The one recognizes a government, the other reorganizes it. But the
"reaffirmation of the political and legal relationship" language of the
amended purpose also implies the history of indigenous self-governance in
the islands, meaning it might be seen to recognize the government it would
Whatever the ultimate meaning of these distinctions in law, they and a
number of other major revisions got the attention of Mililani Trask.
A Native rights activist who represents indigenous Hawaiian people in
several international forums, among them the Organization of American
States and the UN Permanent Forum on Indigenous Issues, Trask denounced the
revised bill in a widely distributed e-mail. In the process she identified
the specific nature of negotiations set forth in the revision, but
mentioned only in passing and somewhat obscurely at the April 21 meeting:
"A ... new addition to the bill is the requirement that the U.S. and the
state of Hawaii must obtain a global settlement for [indigenous] Hawaiian
lands and revenues before the [indigenous] Hawaiian nation is recognized.
In addition, the new bill says that the U.S. Congress and the state
legislature must pass laws approving the global settlement undefined before the nation is recognized."
Another point not mentioned at the hearing is the referral of Native
Hawaiian claims against the U.S. to U.S. District Court for the District of
Hawaii. Trask interprets this to mean that "Hawaiian claims for the
overthrow [of the indigenous Hawaiian monarchy in 1893] and for economic
development rights under our treaties will be lost. All historic claims
relating to mismanagement or transfer of trust lands and assets will also
not be allowed. These claims cannot be addressed under international law at
the U.N. They must be litigated with the U.S. in Federal court.
"Section 8(c)(2) provides that the U.S. ... will have jurisdiction to hear
existing claims against the U.S. arising under Federal law existing on the
date of enactment of this Act. This means that all historic claims will not
Section 8(2)(c) is wholly new to Senate Amendment 3043. It did not exist in
the introduced version or in the reported version of S. 344.
Trask issued an immediate call for "all sovereign Hawaiians" to contact
Sen. Bill Frist, R-Tenn., Senate Majority Leader, stating opposition to S.
344 and demanding a congressional hearing on the bill in Hawaii. Senators
Akaka and fellow Hawaii Democrat Daniel Inouye, a co-sponsor, have asked
Frist for time to consider the bill on the Senate floor in a crowded
legislative schedule. That crowded schedule, and the legislative gridlock
setting in around it, looms large for several items of complex legislation,
besides S. 344 - including, as detailed in Part Two of this series, the
national energy legislation.
If the headwind from Hawaii mounts, federal recognition of a Native
Hawaiian governing entity could lose some of the headway it has made.
Hawaii's senior Democratic lawmakers, Akaka and Inouye, can be expected to
keep the vessel steady, but political observers in general feel it may be
getting late in a war-time, election-year session to get controversial
legislation onto the Senate floor for a vote. Balanced against their doubts
is the conviction of others, within both Hawaii and Washington's political
culture, that there may never be a better time to pass the Akaka Bill. The
latter thinking is based on factors such as the credibility within
Republican ranks on Capitol Hill of Hawaii Gov. Linda Lingle, a fellow
Republican who has proved a leading advocate for S. 344, and the departure
following this year of both Inouye and Campbell from leadership positions
with the Senate Committee on Indian Affairs. (Campbell is retiring from the
Senate and Inouye will remain on the committee, not as the ranking Democrat
but in a position no doubt of less formal leadership by virtue of his
stature in Native affairs.)
Many Native Hawaiians consider federal recognition a pressing issue because
a series of court-sanctioned challenges in the state has threatened
Native-specific preferences. Federal recognition would moot such challenges
by defining Native Hawaiians as a political group, rather than as a racial
But the shades of opinion among Native Hawaiians on a formalized federal
relationship are many. One faction, taking its lead from Alaska Natives who
have warned against the non-treaty model in U.S.-Native relations, believes
the state and its preferences are well out of it because the federal
government can then recognize indigenous Hawaiians as a tribe. This group
opposes S. 344 in part because it confirms the state in its old habits of
collecting federal revenue in the name of Native Hawaiians and
administrating their affairs, and confers new rights on it as well. Indeed
one leading figure for this position - Maui Loa, Hereditary Chief of Hou
Lahuiohana (band) of native Hawaiians of the Blood (the latter phrase is
also a legal designation) - maintains that passage of S. 344 would be a
setback to tribal sovereignty, "as it would confer unprecedented new rights
on the states."
Another faction insists on the continuing independent sovereignty of a
people that has never surrendered it; here the opposition to S. 344 focuses
on its entrenchment of federal authority.
(Continued in Part Two)