Akaka Bill Revisions Draw Hawaiian Ire; PART TWO

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WASHINGTON - For those willing to work within the full existing framework
of federal law, the Akaka Bill is considered progress.

S. 344 passed a Senate Committee on Indian Affairs vote in its original
version. But that ran afoul of Interior Secretary Gale Norton's reluctance
to referee the definition of Native Hawaiian. In addition, Congress
harbored suspicions that the bill would transfer state resources to the
Native governing entity and lead to claims in international law against the
federal government.

On April 21, at a brief business meeting, the committee passed an amended
version of S. 344. The revised bill seeks to address the concerns of
Congress and the Interior by appointing a nine-member commission to settle
identity; referring all claims against the U.S. to federal court;
subjecting resource and sovereignty transfers to negotiation between the
state, the federal government and the Native governing entity; and defining
Native Hawaiians as direct lineal descendants of indigenous inhabitants of
the islands as of Jan. 1, 1893, the year U.S. Marines and plantation
"owners" overthrew the last indigenous clan monarchy of old Hawaii. The
bill would also define as Native Hawaiian anyone eligible in 1921 for
programs under the Hawaiian Homes Commission Act, or their descendants.

Inclusion of the latter led to a reminder that not all indigenous Hawaiians
favor the full existing framework of federal law as construed in S. 344.
Chief Maui Loa of the Hou Band accused the bill's sponsors of trying to
expand the definition of Native Hawaiian so as to serve the state purpose
of usurping revenues meant for indigenous Hawaiians. He identified the
bill's use of Native Hawaiian, as opposed to the 1921 law's native
Hawaiian, as one indicator of duplicity. The 1921 law defined indigenous
Hawaiians by a 50 percent blood quantum.

He added that the 1921 standard has never been repealed by Congress, nor
has the state's version of the law ever been enacted by Congress. Therefore
according to Maui Loa, the 1921 federal law rules, as recognized in a
recent U.S. Supreme Court case, Rice v. Cayetano, that canceled
state-authorized voting rights based on a Native Hawaiian preference. Maui
Loa asserts that other state-installed Native preferences are overthrown by
the ruling, leaving the federal "native Hawaiian" preference of 1921, based
on 50 percent blood quantum, unchallenged in its constitutional stature.

The concern of many Native Hawaiians that Native preferences in the state
are at risk from Rice v. Cayetano was a driving force behind the Akaka
Bill. Maui Loa maintains that S. 344 is an attempt to restore state
preferences. He terms its indigenous Hawaiian beneficiaries "ethnic
Hawaiians" as opposed to "native Hawaiians." He terms backers "royalists"
(a reference to the last indigenous clan monarchy of old Hawaii, deposed in
1893 - the argument here, very much in brief, goes back to the Great Mahele
or land division of 1848, which introduced individual land ownership to the
traditional system of resource use; Maui Loa considers the Great Mahele
invalid because it relied on the sovereign rule of the Kamehameha line, as
he states the Hou Band never did.)

S. 344 has broad support all the same. Hawaii's governor, its legislature
and its congressional delegation have all backed it, publicly and
repeatedly. Support within the Native community in Hawaii is also
widespread, according to surveys cited by the Council for Native Hawaiian
Advancement.

But even for those who accept the full existing framework of federal law in
Native Hawaiian affairs, S. 344 presents problems. Committee member Craig
Thomas, R-Wyo., raised a telling objection April 21 - the revised version
of S. 344 would keep it coming before the Senate for years if it became
law, he pointed out, because its leading provisions would have to be
enacted in stages. This flies against one of the Senate's unwritten rules,
firm if not exactly adamantine, for complex legislation - one bite at the
big apple of major law is all one should expect to get, though minor
adjustments can always be made by amendment afterward. Thomas asked bluntly
why the committee would pass a revised S. 344 at this time.

He got no answer to that from the other committee members present - Sens.
Ben Nighthorse Campbell, R-Colo., Daniel Akaka and Daniel Inouye, both
D-Hawaii.

Another unanswered question at the hearing's end was whether Akaka and
Inouye have entered into a political deal that would involve changing their
votes on national energy legislation. Both have acknowledged, Akaka
indirectly and Inouye in so many words, that the Senate's Republican
leadership has courted their votes on the closely contested energy
legislation, a high priority of President George W. Bush. Akaka and Inouye
voted against a parliamentary maneuver that would have moved the energy
bill through the Senate to the president's desk; consideration on the Akaka
Bill has been their reported price for any discussion of a change in their
votes. Like S. 344, the national energy legislation is one of those complex
bills whose stalemated status is feeling the effects of congressional
gridlock.

Paul Moorehead, Campbell's spokesperson on the Senate Committee on Indian
Affairs, said that after the Senate Republican leadership failed to break a
Democratic filibuster to prevent the energy legislation from coming to a
vote, Republicans were naturally going to peel off a Democratic vote if
they could. The Hawaii delegation was as good a place to look as any, with
the Akaka Bill pending and energy a major issue in Hawaii (which is
dependent on imported supplies). He added that he didn't know whether any
discussions to that effect had ever gone forward.

Pat Zell, the committee's Democratic chief of staff, said the last time
Linda Lingle, the Hawaii governor, visited Capitol Hill to advocate for S.
344 among fellow Republicans, the energy bill came up at every meeting.
"But I haven't heard word one about that in months," Zell said. Inouye
hasn't said anything to her about it, she added, beyond noting with humor
that he keeps hearing the rumor he'll be part of a deal on the Akaka Bill,
but never gets approached. state officials in Hawaii who attended meetings
on the Akaka Bill on Capitol Hill with Lingle said the national energy
legislation did not come up, according to Lingle Communications Chief
Russell Pang.

Akaka's press officer, Paul Cardus, said nothing at all has happened with
Akaka either in that regard.

At the April 21 hearing, Campbell announced himself as co-sponsor of S. 344
in its revised version. Campbell has been one of the leading backers of the
national energy legislation, arguing that its Title III would encourage
energy development on reservations by streamlining federal project-approval
procedures. Campbell and his staff have worked closely with Sen. Pete
Domenici, R-N.M., chairman of the authorizing Energy and Resources
Committee, to refine the provisions in Title III and get it through
committee. As the much-revised energy bill's sponsor of record, Domenici
would have to approve any move to attach S. 344 as a rider if the energy
bill came up for a vote.

In her call of "all sovereign Hawaiians" to action against S. 344, Mililani
Trask accused the Council for Native Hawaiian Advancement of
misrepresenting the bill's contents and lobbying for it with "Hawaiian
program funds" from the Department of Hawaiian Home Lands, a state agency.

Robin Danner, CNHA chief executive officer and president, denied lobbying
for S. 344 or misrepresenting its content. "CNHA joined a coalition of
grassroots organizations to take information on the Akaka Bill and the
[Rice v. Cayetano and related] lawsuits against Hawaiian institutions
directly to Hawaiian communities, directly to Hawaiians to increase their
knowledge of the issues that impact them. We conducted over 50 workshops in
Hawaiian communities all over the state, with a reach of well over 5,000
attendees. The workshops provided full copies of the Akaka Bill, full
copies of the lawsuits filed against our Native Hawaiian programs - I'm not
sure how Ms. Trask can assert misrepresentation of the bill when we
provided full and exact copies of it to our Native communities. It is what
it is."

It changed in significant part following the April 21 amendment; Trask
accused CNHA of misrepresenting the amended version in press releases.

Danner said the Akaka Bill is simply a good start on restoring Native
Hawaiian status in the islands, adding that no one bill can rescind the
damage done to Native Hawaiian culture, nor address all Native Hawaiian
needs.

Trask also mentioned a report in the fall 2003 Native Americas magazine
that exposed financial relationships between Council for Native Hawaiian
Advancement leadership and Arctic Power, an Alaska oil industry firm
associated with lobbying to open the Alaska National Wildlife Refuge to oil
extraction. Akaka and Inouye are both longtime proponents of ANWR
development. Provisions to open the refuge had been withdrawn from the
national energy legislation at last notice.

Danner said her sister, Jade Danner, a project director for CNHA, provided
accurate information within Hawaii on Inupiat Eskimos while a
"communications consultant" for Arctic Power. The Inupiat favor ANWR oil
development, and Jade Danner was simply setting the record straight after a
Gwich'in delegation to Hawaii, opposed to ANWR drilling, had misrepresented
the Inupiat, Robin Danner said. She added that she lived among the Inupiat
before starting CNHA in Hawaii. She offered no evidence of the supposed
Gwich'in misrepresentations.

The difference in opinion over ANWR between the Inupiat and Gwich'in, both
indigenous peoples of the Arctic, has surfaced elsewhere in Indian country
in recent years. Danner said her position on it is that it's a matter not
of oil but of Native self-determination - Native peoples making their own
decisions about their own resources. The Inupiat are making decisions about
their own land; the Gwich'in are opposed in large part because of the
presumed effects of ANWR oil development on migratory caribou herds.

Two outstanding points about S. 344 do appear to be settled after a
fashion, following a period of doubt in Congress: it won't bring "Indian
gaming" to the islands, as the bill explicitly denies any authorization for
the Native Hawaiian governing entity to conduct gaming activities under the
Indian Gaming Regulatory Act; and it won't put the Native Hawaiian
governing entity into competition with tribes for BIA funds, for it denies
authorization for eligibility for BIA programs and services to anyone not
already eligible.