Ka Wai Ola - Office of Hawaiian Affairs, Volume 21, Number 6, 1 June 2004 — Changes make bill stronger [ARTICLE+ILLUSTRATION]

Changes make bill stronger

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Editor's note: Recent amendments īo S.344 - the Akaka Bill - have sparked important discussion and debate within the Hawaiian community. The Office of Hawaiian Affairs is consulting with experts to shed light on the pros and cons ofthe pend.ingfed.eral recognition legislation. This monīh, Charles Wilkinson, Distinguished. Professor of Law at the University of Colorad.o, and. an expert in Indian and. constitutional law, provid.es a legal analysis of the amendments to S.344. As a general matter, the revisions recently made to the Akaka Bill are few and are technical in nature. From the point of view of

Native Hawaiians, the changes, as discussed helow, make the bill somewhat stronger. I. Processes Under the Proposed Legislation The objectives of the revised legislation remain the same as in previous versions of the bill. The United States will onee again formally recognize Native Hawaiian sovereignty; reestablish a government-to-government relationship with the newly-organized Native Hawaiian government; and reaffirm the federal trust relationship. The bill will also set in motion a process for transferring land and resources to the Native Hawaiian governing entity. While the revisions make no substantial changes to the complex process of recognition, it may be useful to outline briefly the steps that the current proposed legislation establishes for recognition: See ANALYSIS on page 10

ANALYSIS from page 1 A. Preparation of the membership roll. Under Section 7, a nine-member commission, composed of Native Hawaiians and appointed by the Secretary of the Interior, will prepare a membership roll for the Native Hawaiian government. This must be done within two years. B. Election of Interim Governing Council. The adults on the membership roll will then elect an Interim Governing Council, whieh will exercise limited duties until officers are elected. C. Adoption of Governing Documents. The Interim Governing Council will submit for an election of the membership a proposed constitution or other set of organic governing documents. D. Election of Officers. The membership will then elect officers of the Native Hawaiian governing entity. With the certification by the Secretary of the Interior of the organic governing documents and the election of officers, the recognition — or "reaffirmation" — process is complete: as Section 7 (c)(6) provides, at that point " the political and legal relationship between the United States and the Native Hawaiian governing entity is hereby reaffirmed and the United States extends Federal recognition to the Native Hawaiian governing entity as the representative governing body of the Native Hawaiian people." E. Negotiations with the state anā the United. States. The Native Hawaiian governing entity will then enter into critical three-way negotiations with the state and federal governments over such key issues as the transfer of land and the exercise of civil and criminal jurisdiction. The governing entity will have many other responsibilities, including researching, negotiating, and perhaps litigating claims on behalf of the Native Hawaiian government. II. The Commission One new provision in the recent revisions is the creation of the commission that will assemble the initial membership roll. In previous versions of the Akaka Bill, these duties would have been performed in conjunction with the Office for Native Hawaiian Relations, a new office within the Department of the Interior. Under the revisions, the membership roll will be a responsibility of this nine-member commission composed of Native

Hawaiians. While this is not a major change, it should be a benefit to Hawaiian Natives — as an aspect of self-determination — that they will be creating the membership roll themselves, rather than having it done by an agency within the Interior Department. III. Settlement of Claims and Statute of Limitations This has been a most difficult aspect of this legislation. While the Akaka Bill has always focused on recognition of Native Hawaiian sovereignty, the Administration has attempted to use it as a vehicle to abrogate Native Hawaiian claims. Senators Akaka and Inouye have resisted these attacks and have attempted to keep the bill neutral on any claims issues — to assure that no Native claims are eliminated or diminished. As currently written, Senators Akaka and Inouye have prevailed and the bill does protect any Native Hawaiian claims that may now exist. Moreover, recognition of Native Hawaiian sovereignty by the United State is not contingent upon settlement of Native Hawaiian claims. Section 8(c)(l) provides that "Nothing in this Act serves as a settlement of any elaim against the United States." Section 8(c)(2) then provides that any existing claims brought by the Native Hawaiian governing entity "relating to the legal and political relationship between the United States and the Native Hawaiian people" must be brought within 20 years. This provision does not apply to claims by individuals or claims brought in international forums. The 20-year period does not start when the recognition act is passed. Instead, the statute of limitations begins to run only when the Native Hawaiian governing entity becomes recognized — whieh, under the terms of Section 7(c)(6), does not occur until after the organic governing documents go into effect and the Native Hawaiian government officials take office. On one level, it might seem advanta-

geous not to have any limitations period at all. At the same time, political pressures made it necessary to have some provision in the bill. The 20-year period should give Hawaiian leaders ample time to identify and file any existing claims. Further, the time period is generous by comparison — time periods for claims by Indian tribes on the mainland have been set by statutes at five years in some cases, six years in others. Perhaps most important is the fact that this provision in the Akaka Bill does not take away any claims that may now exist. IV. Timing of Recognition and Negotiations With the State and the United States Questions have arisen concerning the order — whieh comes first — between (1) recognition and "reaffirmation" of Native Hawaiian sovereignty in Section 7(a)(6) and (2) the far ranging, threeparty negotiations over land and governmental authority in Section 8(b). Recognition and reaffirmation of Native Hawaiian sovereignty is not contingent upon negotiations with the State of Hawai'i or the United States. Recognition and reaffirmation comes first, then eome the three-party negotiations called for by Section 8(b). Section 7(c)(4), in the provisions relating to recognition and reaffirmation, refers to "the future negotiations to be conducted under the authority of Section 8(b)(l)" (emphasis supplied). Then, Section 8(b)(l), dealing with the negotiations, is even more explicit, stating that the negotiations will take plaee "upon the reaffirmation of the political and legal relationship between the United States and the native Hawaiian governing entity." The Senate Committee Report also explains that the negotiations will occur "following the extension of Federal recognition of the Native Hawaiian governing entity." (Page 74 of revised Committee Report draft). One point should be emphasized: The Akaka Bill does not create a "global" settlement — indeed, the

Akaka Bill does not create any settlement. Instead, the bill requires that the new Hawaiian government be recognized before any negotiations ean begin. Then the large issues of land, resources, and jurisdiction will be taken up in the three-party negotiations under Section 8(b). In those negotiations, the Native Hawaiian people will be represented by the new Native Hawaiian governing entity. Any settlement, therefore, must await the formation and recognition of the Native Hawaiian government. No settlement ean occur simply by the passage of the Akaka Bill. V. Legal Authority of Congress to Recognize Native Hawaiian Sovereignty Opponents of Hawaiian sovereignty have long argued that Congress lacks constitutional authority to recognize a Native Hawaiian government. In the judgment of most scholars in the field, including myself, Congress plainly has authority under the Indian Commerce Clause of the Constitution to recognize Native Hawaiian sovereignty and otherwise legislate with respect to Native Hawaiians. See, e.g., Felix S. Cohen's Handbook of fed.eral Indian Law, p. 802-04 (1982 ed.). This is because the overthrow and subsequent actions affected only the recognition of Hawaiian sovereignty; the sovereignty itself continued to exist, albeit not recognized by the United States. Now a major Supreme Court ruling and the recent revisions to the Akaka Bill have considerably strengthened the position of Hawaiian Natives that Congress has constitutional authority to enact the Akaka Bill. In April, the Supreme Court handed down its opinion in United States v. Lara, 124 S.Ct. 1628 (2004). The case involved the question of whether tribes have criminal jurisdiction over nonmember Indians. In the 1978 Oliphani decision, the Court ruled that tribes lacked criminal jurisdiction over non-Indians. Then, in the 1990 Duro case, the Court extended the 01iphant rule to non-member Indians — in other words, finding that the Navajos could not try a Sioux in a criminal case. Congress, however, promptly overrode the Duro opinion by "recogniz[ingj" and "reaffirm[ingj" the inherent authority of tribes to try non-member Indians. Lara held that Congress has broad power over Indian affairs under the See ANALYSIS on page 15

While the Akaka Bill has always focused on recognition of Native Hawaiian sovereignty, the Administration has attempted to use it as a vehicle to abrogate Native Hawaiian claims. Senators Akaka and Inouye have resisted these attacks and have attempted to keep the bill neutral on any claims issues - to assure that no Native claims are eliminated or diminished.

ANALYSIS from page 10 Constitution and that it ean determine the nature of Native governmental powers. The opinion explained that the Constitution authorizes Congress to "enact legislation that both restricts and, in turn, relaxes those restrictions on tribal sovereign authority." The Court quoted an older case to the effect that "If [by the political branches] those Indians are recognized as a tribe, this court must do the same." In other language, the Lara opinion (referring to the restoration of the previously terminated Menominee Tribe of Wisconsin) stated that "indeed, Congress has restored previously extinguished tribal status — by re-recognizing a Tribe whose tribal existence it previously had terminated." The opinion twice referred to the language that Congress used — "recogniz[ing]" and affirm[ing]" — in restoring tribal jurisdiction over non-member Indians. This broad congressional power to "recognize and affirm" powers of Native governments is

most useful to Hawaiian Natives in countering arguments that the Akaka Bill cannot be passed because Hawaiian sovereignty was somehow "erased" by the overthrow or because Hawaiian Natives are not within Congress' expansive authority under the Indian Commerce Clause. We should appreciate how closely the Menominee situation, cited with approval in the Lara opinion as just discussed, parallels the Hawaiian situation. The Menominee Tribe of Wisconsin was terminated — legally very similar to the overthrow — in 1954. Then, in 1973, Congress "restored" federal recognition by "recognizing" and "reaffirming" Menominee sovereignty. This is precisely what Native Hawaiians seek in the Akaka Bill. Subtle redrafting of the Akaka Bill has also been helpful in bringing the bill within the broad congressional power recognized by Lara. The terms "reaffirm" and "reaffirmation" — similar to the phrase in the statute approved in Lara — have been used in several places in the Akaka Bill. The title of the Akaka Bill has been amend-

ed to make it the Native Hawaiian Government Reorganization Act of 2004. The word "Reorganization" brings the legislation into the mainstream of Native American legislation: the Indian Reorganization Act of 1934 authorized tribal constitutions for tribes who had not exercised their sovereignty in terms of constitutionmaking. The unusually rich and detailed historical material in the statute and the legislative history also bolster the constitutional standing of Congress to enact this reform legislation. The extensive Congressional findings in Section 2 of the bill and the revised Committee Report emphasize the Kingdom's original sovereignty, the wrongs acknowledged in the Apology Resolution, and the many federal laws from the Hawaiian Homes Commission Act of 1920 to the numerous modern statutes that Congress has enacted through its trust relationship with the See ANALYSIS on page 22

ANALYSIS from page 15 Native Ilawaiian community. This long historical pattern shows the continuity — Lhe direct link — bctwccn thc Kingdom recognized in the 19th-century treaties and the sovereign Hawaiian government that Congress will recognizc under the Akaka B i 1 1 . As the Court in Lara put it, Congress decides "the metes and bounds of tribal autonomy" and the courts should not "sccond-gucss thc political branches* own determinations." The attacks on Native sovereignty and congressional authority will doubtlcss continuc, but the Ilawaiian position has without question been strengthened and reinforced during the past few months. VI. Conclusion Native sovereignty was forcibly

overwhelmed by the overthrow and has been kepl inactive in the islands for more than a ccntury. Hawaiian people have labored for decades and have achieved many things, including the Apology Resolution and thc return of Kaho'olawe. Now recognition of Ilawaiian sovereignty ean be restored by the Akaka Bi 1 1 so that self-determination ean be rcvivcd and thrivc. The land and resource base that will result from the three-party negotiations called for by the Akaka B i 1 1 will be a treasurcd lcgacy for futurc gcnerations of IIawaiians. As is well known, tbe newly organized Native Hawaiian governmcnt will not posscss international sovereignty and therefore will not be fully independent. Nonetheless, the domestic sovereignty recognizcd by the Akaka Bill is truly substantial. In modern times, mainland tribes have used their

sovereignty to eliminate control by the Bureau of Indian Affairs and breathc new lifc into their eommunities. IIawaiians will do the same — and more. And make no mistake about it: if the polilieal environment cver docs heeome rcceptivc to full independence, then IIawaiians woulel henefit enormously from having a serious, l'unelional governmcnt already in plaee, eomplete with a legislature, courts and an array of administrative agencies effectively serving the needs of Nativc Hawaiians. Legislation is never perfect, but the Akaka Bill is a solid vehicle Ihal brings long-delayed justice to Hawaiian people. Mueh hard work lies aheael to eomplele the complex procedures of the proposed legislalion, but passage of the Akaka B i 11 marks an historic accomplishmcnt for Native IIawaiians and deserves to be recognized as such. II