(c) Copyright 2005 Kenneth R. Conklin, Ph.D. All rights reserved
Aloha dear readers. You know how strongly I oppose the Akaka bill. Some webpages are listed at the bottom of this essay where anyone may review why the Akaka bill would be disastrous for ethnic Hawaiians, for the State of Hawai'i, and for the entire United States.
But let's do some thinking "outside the box." Let's suppose we were to agree with the general concept of the Akaka bill, that it's a good idea to set up a government exclusively for people who have at least one drop of Hawaiian native ancestry. Suppose we want the Akaka bill to be the vehicle to help ethnic Hawaiians "exercise self-determination", "preserve their culture", get goodies from the government, and protect currently established Hawaiians-only programs. I'm going to hold my nose and suggest amendments consistent with the Akaka bill's immoral racial separatist purpose, to ensure democratic due process for both ethnic Hawaiians and for those with no Hawaiian native ancestry. Perhaps the bill can be made somewhat less awful. The idea is that no ethnic Hawaiian and no Hawaiian without native ancestry should be left behind.
Few people realize how coercive and undemocratic the Akaka bill is. It authorizes creation of a race-based government by whatever small group of ethnic Hawaiians chooses to do so, without any chance for the majority of ethnic Hawaiians to reject that concept. Once the tribe has been created, all government lands and money handed out to ethnic Hawaiians must be given first to the tribal council which then distributes benefits only among enrolled members. Thus, there is financial pressure to join the tribe or else lose the benefits. But joining the tribe results in a loss of rights afforded by state and federal Constitutions, because “sovereignty” gives the tribal council the right to enact very different civil and criminal laws and enforce them through “culturally appropriate” methods. Joining the tribe also could result in intimidation to “suck up” to powerful tribal leaders to ensure favorable treatment. That’s why it’s important to give all ethnic Hawaiians the chance to decide by majority vote to reject the creation of any such tribe. Also, once the tribe has reached a negotiated settlement with the federal and state governments to divide up the lands and resources of Hawai’i, that settlement can be ratified by the tribal council without a vote of enrolled members; and that settlement can be ratified by the state Legislature without a vote by the people of Hawai’i.
One “final” problem with the Akaka bill is its lack of finality. It allows twenty years for the Akaka tribe to file a multitude of lawsuits against the United States before time runs out to reach a global settlement; and it provides no time limit at all for lawsuits against the State of Hawai’i. Thus the Akaka tribe could continue to keep Hawai’i in constant turmoil without end, using a settlement of one issue to serve as a springboard to the next. If the Akaka bill is genuinely to provide a vehicle for reconciliation, there must be a global, final settlement of all issues; and that settlement must be achieved sooner rather than later. The civil war to divide Hawai’i must be resolved once and for all. As Abraham Lincoln said in his second inaugural address toward the end of the Civil War: “With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the wounds ...” Some might complain that a short time limit for achieving a final settlement is too steamrolleresque. But without a final settlement in a reasonable amount of time, the Akaka tribe itself becomes a steamroller that flattens the 80% of Hawai’i’s people who are not eligible to join the tribe along with a substantial number of ethnic Hawaiians who cannot stomach the thought of racial separatism.
Disclaimer: These ideas for amending the Akaka bill are being offered for the purpose of stimulating discussion. The contents of this essay do not represent the position of any group or of any individual other than the author. This essay was created on February 1, 2005 based on the bill S.147 and H.R.309 as submitted in the Senate and House on January 25, 2005
ANTI-DEMOCRATIC ASPECTS OF AKAKA-BILL STEAMROLLER
This essay focuses on the language of the Akaka bill itself and how to improve that language to force the implementation of the bill to be more democratic after it has passed. But we must not forget the antidemocratic process used for 5 years to try to get the bill passed. The only open public hearings on the Akaka bill were held in August 2000 for 5 days at the Blaisdell Pikake Room in Honolulu, when independent reporter Bob Rees wrote that testimony was 9-to-1 against the bill. Since then, every hearing has been in Washington, at Congressional committee meetings where only carefully selected supporters were invited to testify. And then, in trying to pass the bill, it has always been hidden as a single sentence buried deep inside a massive omnibus appropriations bill, or (in the House) on the calendar of non-controversial bills to be passed by voice vote under suspension of the rules when only a handful of Representatives were present. But let’s set aside those violations of democratic openness and focus on the contents of the bill.
The Akaka bill as submitted to Congress authorizes the creation of an ethnic Hawaiian government without taking any vote among all ethnic Hawaiians to discover whether a majority of them like the idea. It is quite possible that only a small portion of the 401,000 ethnic Hawaiians (who identified themselves in Census 2000) might join a membership roll and be certified to speak on behalf of all ethnic Hawaiians to elect a tribal council. That tribal council could then write a constitution and get it approved by the federal government without any secret-ballot vote by the small group on the membership roll, and without any consultation at all with the larger group of 401,000 ethnic Hawaiians. The tribal council could then negotiate with the State of Hawai'i and the federal government to divide up the lands and resources of Hawai'i, producing a negotiated agreement which would never have to be submitted to the small group of tribal members or the larger group of all ethnic Hawaiians. The resulting agreement could be implemented by a simple vote of the Legislature without ever putting it to a vote of all Hawai'i's people. Surely such a far-reaching set of changes in the laws of Hawai'i should be required to be submitted to a vote in a general election, in the same way as any Constitutional amendment -- indeed, most Hawai’i Constitutional amendments are trivial by comparison with the changes envisioned in the Akaka bill.
Let's suppose that we want to protect the democratic and civil rights of ethnic Hawaiians and of all Hawai'i's people, as best we can, within the context of authorizing the creation of a race-based government. We want to protect the rights of all ethnic Hawaiians as decisions are made: whether to authorize the creation of a government to speak on their behalf; who should belong on a membership roll for the new government; what laws to impose upon themselves; and whether to accept a global settlement negotiated with the federal and state governments. We also want to protect the rights of all Hawai'i's people to approve or disapprove the negotiated package dividing up lands, resources, and jurisdictions among ethnic Hawaiians vs. all Hawai'i's people vs. the federal government. The Legislature and Governor cannot be trusted to drive a hard bargain on behalf of all Hawai'i's people, because they fear the 20% swing vote represented by ethnic Hawaiians -- we have already seen the eagerness of the Governor and Legislature to give away ceded land revenues and tax dollars to OHA, DHHL, and other Hawaiians-only programs.
The Akaka bill provides a process which is missing some important provisions, and has others that need substantial improvement. The bill as it stands can best be described as an anti-democratic steamroller that favors the interests of powerful institutions at the expense of the masses of ordinary people, both ethnic Hawaiian and non-native. A simple look at who favors the bill and who opposes it will confirm this observation.
The bill's strongest supporters are large, wealthy, powerful institutions such as OHA, Department of Hawaiian Homelands, Alu Like, Papa Ola Lokahi, Native Hawaiian Leadership Project, Kamehameha Schools, etc. The Council for Native Hawaiian Advancement is an umbrella organization created specifically to bring these institutions together to support the Akaka bill and to exchange information about how to get more money and power. The Akaka bill is supported by Governor Lingle, and by a unanimous resolution of the Legislature (Republicans and Democrats), because they fear they could not get elected without support from powerful institutions and from a "swing vote" of ethnic Hawaiians who make up 20% of Hawai'i's people. There is also a fundamental conflict of interest that probably cannot be resolved -- the 20% of Hawai'i's people who have native ancestry will be "players" with voting rights on both sides of the negotiations between the ethnic Hawaiian government and the government of the State of Hawai'i. Politicians from Alaska favor the Akaka bill because of the mutual support Alaska and Hawai’i have given each other across party lines to pass bills through Congress, and because of a connection between Alaska oil interests and Hawai’i supporters of the Akaka bill (ever wonder why Inouye and Akaka support oil drilling in the Arctic National Wildlife Refuge?).
At the national level several Republican Senators have announced their opposition to the Akaka bill because they have experience with Indian tribes in their own states and they know how divisive the bill would be in Hawai'i. They also want to protect their own (often small) tribes against the huge Akaka tribe that would compete for limited federal money. They also are concerned the Akaka bill would set a precedent making it easier to create hundreds more new "tribes" that would be divisive in their own states; and making it possible to provide race-based benefits and race-based governments to other racial groups claiming to be indigenous (such as Hispanics in California, Texas, Arizona, etc). They are worried about how the Akaka bill would accelerate the balkanization of America. Inside Hawai'i, those who have stepped forward to oppose the bill are mostly individuals and poorly-financed small groups, such as Hawaiian sovereignty independence activists (Nation of Hawai'i, The Living Nation, The Reinstated Government, Ka Pakaukau, etc.); and civil rights activists trying to defend the unity and equality of Hawai'i's people in a rainbow society (Aloha For All). The Akaka bill is perhaps opposed by most ethnic Hawaiians, and probably opposed by most of Hawai'i's population. But it seems "politically incorrect" or "anti-Hawaiian" for people to say they oppose the bill, and therefore the silent majority stays silent as the noisy steamroller gathers momentum.
Let's look at how the steamroller could easily squash the rights of ethnic Hawaiians and of all Hawai'i's people under the language of the Akaka bill as currently written. And let's see if we can propose amendments to force the process to be more democratic. In the end, no matter how the process in the Akaka bill is amended, the overall concept is still morally repugnant and would be disastrous for Hawai'i and for all America. But at least we can hope to amend the bill so that the right to democratic self-determination for ethnic Hawaiians and for all Hawai'i's people will have a better chance of being protected.
A VERY BRIEF OUTLINE OF THE PROCESS DESCRIBED IN THE AKAKA BILL
Two extremely important words in the Akaka bill are the legally defined terms "shall" and "may." In legalese, "shall" means "must"; and "may" means "might but is not necessarily required to." To make the full force of meaning easier to understand, I have used the more commonsense language. [* brief comments intended to show undemocratic steamroller aspects are indicated in square brackets *]
Within 180 days after the bill is enacted, the U.S. Secretary of Interior must appoint a commission of 9 ethnic Hawaiians whose main job is to prepare a roll (list) of all ethnic Hawaiians who wish to participate in the process of forming a government. That commission must certify that every person on the roll meets the racial requirement of being ethnic Hawaiian, and may (but is not required to) consult with genealogists and various ethnic Hawaiian institutions to help make those decisions. Within 2 years after all 9 members of the commission have been appointed, the commission must send the roll to the Secretary of Interior; and the roll must be published in the Federal Register. The Secretary of Interior might (but is not required to) provide a process for appeal from people whose names were left off the roll [* because the Commission doesn't accept their proof of being racially Hawaiian or perhaps simply doesn't like them *] but who wish to be included on it. The Secretary of Interior must publish the roll within 90 days of receiving it, and later updates to it, regardless whether appeals have not yet been decided. "If the Secretary fails to publish the roll, not later than 90 days after the date on which the roll is submitted to the Secretary, the Commission shall publish the roll notwithstanding any order or directive issued by the Secretary or any other official of the Department of the Interior to the contrary" [* There's no way the U.S. Secretary of Interior can refuse to accept the roll, whether or not it is complete or accurate *]. "The publication of the initial and updated roll shall serve as the basis for the eligibility of adult members of the Native Hawaiian community whose names are listed on those rolls to participate in the reorganization of the Native Hawaiian governing entity." [* Anyone not on the roll cannot participate or vote. Also, the interim council or later more permanent governing entity has the power to change the rules for membership or for how decisions are made; for example, adopting decisions through the “Hawaiian” process of "consensus" (i.e., group pressure, intimidation, public shaming) rather than the “Western” process of secret ballot majority. *]
Enrolled members might establish criteria for who would be eligible for an interim governing council, and the rules for the council, and might elect such a council. The interim council might create a constitution including rules for who can be a citizen, how the more permanent government will be structured, and what would be the responsibilities and civil rights of the citizens. The interim council might (but is not required to) distribute the proposed constitution to the enrolled members. The interim council might (but is not required to) hold an election among the enrolled members to ratify the constitution [* or might find some other way, such as a voice vote at a mass meeting where all are invited but few attand, to certify that a majority of enrolled members have approved the constitution which perhaps they have never seen *] The interim council might (but is not required to) hold an election of officers of the more permanent governing entity to follow. [* The interim council has tremendous power to adopt a Constitution and to select officers for the more permanent government to follow. Eventually the interim council must gain "majority approval" for the constitution among the enrolled members who are present and voting, but there is no need to consult ethnic Hawaiians who did not enroll, or the state Legislature, or the citizenry of Hawai'i at large. The whole thing is like a private but very powerful club or college fraternity which sets its own membership rules and then has the right to make civil and criminal laws that it considers “culturally appropriate” on the full range of topics normally dealt with by state law, such as taxation, zoning, criminal laws and procedures for holding trials, divorce and child custody, etc. *]
As soon as the constitution has been sent to the U.S. Secretary of Interior, that Secretary must, within 90 days, either certify the constitution or send back "the organic governing documents to the Council, along with a justification for each of the Secretary's findings as to why the provisions are not in full compliance" with a list of requirements enumerated in the Akaka bill. The back-and-forth process can continue for as many round trips as necessary. But eventually, if the Secretary ever fails to either certify or send back the constitution within 90 days after the most recent version was submitted, then the constitution is thereby automatically certified without the Secretary's approval [* the Secretary is very busy, has a limited staff, and almost 600 Indian tribes to take care of plus several hundred more seeking recognition through procedures similar to this one. One slip-up for 90 days, and the Akaka tribe is certified no matter how awful its constitution might be *]
As soon as the process for certification with the Secretary of Interior has been completed (or forgotten for 90 days), the Akaka tribe thereby automatically is federally recognized [* Without approval by a majority of those on the membership roll, without approval by a majority of all ethnic Hawaiians, without approval by the State of Hawai'i Legislature, and without a vote by Hawai'i's people *].
As soon as the Akaka tribe is recognized, negotiations might begin among three parties: the tribal governing council, the State of Hawai'i, and the U.S. government. Those negotiations might lead to "an agreement regarding the transfer of lands, natural resources, and other assets, and the protection of existing rights related to such lands or resources; the exercise of governmental authority over any transferred lands, natural resources, and other assets, including land use; the exercise of civil and criminal jurisdiction; the delegation of governmental powers and authorities to the Native Hawaiian governing entity by the United States and the State of Hawaii."
The negotiated agreement would have to be approved by Congress before any federal laws could be changed or federal lands or assets transferred; and the Governor and state Legislature would have to approve the agreement before any State of Hawai'i laws could be changed or lands or resources transferred to the tribe; however, [* there is nothing in the Akaka bill to require the agreement to be ratified by a vote among the enrolled members of the tribe or by all ethnic Hawaiians; and there is nothing in the Akaka bill to require the agreement to be ratified by the people of Hawai'i directly through a ballot question or constitutional amendment *]
SUGGESTING SOME AMENDMENTS TO MAKE THE AKAKA BILL LESS UNDEMOCRATIC
Proposing these amendments is distasteful. It’s somewhat analogous to a priest telling a teenage child "Having sex before marriage is psychologically harmful, a violation of important moral values, and dangerous to your health; but if you're going to do it anyway, here are some ways to make it a little less dangerous. Girls should use contraceptives to reduce the chance of pregnancy, and boys should use (and girls should insist upon) condoms to reduce the chance of transmitting diseases."
(1) The concept of requiring a quorum before the Akaka tribe can be recognized
PROBLEM: The bill as written provides no possibility for ethnic Hawaiians as a group to reject the concept of racial separatism. If the bill passes, it is virtually guaranteed that a race-based government will be created, because (a) there is no requirement that any vote of all ethnic Hawaiians must be held to approve the Akaka tribal concept; and (b) there is no minimum number of ethnic Hawaiians who must sign up on the membership roll to activate the process of creating a government. Here's why this is a big problem. There are already more than 160 federally-funded programs for which every ethnic Hawaiian could be eligible. But once there is an Akaka tribe, federal benefits will all be sent to the tribal government to benefit only tribal members. Those who do not join the tribe will be cut off from any possibility of getting the benefits, because it is unconstitutional for government to give race-based benefits except to Indian tribes (that's the whole reason why the Akaka bill is being proposed). Respect for the rights of all ethnic Hawaiians requires that no tribe should be created to speak on their behalf unless a majority of all ethnic Hawaiian adults either join the tribe or vote “yes” in a plebiscite to approve its existence. Otherwise a tribe could be created which most might not want to join, but where failure to join the tribe will cut them off from benefits they might now enjoy or be eligible for. "Join the tribe or lose all benefits." Simple fairness requires that a majority of all ethnic Hawaiians should actively approve of creating a tribe whose existence will put them in that position.
It is not enough to offer a vote to all ethnic Hawaiians and then accept a majority of those who actually vote. This was done in the HSEC or “Ha Hawai’i” process leading up to an election in 1999 to elect delegates to a “Native Hawaiian Convention”; and only 9% of eligible ethnic Hawaiians bothered to vote in that election. Such a low turnout demonstrates either apathy or a boycot -- either lack of desire to create a race-based government or actual opposition to the concept. Delegates, or council members, elected with such a low turnout (only 8,867 ultimately voted for delegates) clearly are not authorized to speak on behalf of 401,000 people. Yet the Akaka bill would allow a similar procedure, with a similarly low turnout, to establish a governing entity empowered to write laws and negotiate with the federal and state governments for land and money.
According to Census 2000 there were 401,162 people who checked the box for being Native Hawaiian (race alone or in any combination -- same definition as in the Akaka bill). There are probably many thousands more, perhaps hundreds of thousands more, who are aware they have a smidgen of Hawaiian native ancestry, did not bother to check the box, but might come out of the woodwork if they know they can join a tribe and get government handouts. In addition, Native Hawaiians are a rapidly growing population. Of those who checked the box for Native Hawaiian, 253,007 were age 18 and over. Therefore the Akaka bill should not be implementable until a majority of those 18 and over -- at least 126,504 -- have either voted yes to create an Akaka tribe, or have actually signed up on the membership roll and been certified as meeting the race and age requirements.
In July 1996, approximately 85,000 ballots were mailed to people thought to be ethnic Hawaiians in an election sponsored by the State of Hawai'i (four years before Rice v. Cayetano found it was unconstitutional to hold racially-restricted elections under state government sponsorship). The ballot asked the question "Shall the Hawaiian people elect delegates to propose a Native Hawaiian government?" Only about 33,000 of those ballots were returned, and only 30,423 were eligible to be counted. There were 22,294 "yes" votes. Those “yes” votes would represent only about 9% of the 253,007 people known to be ethnic Hawaiians age 18 or older in Census 2000 (admittedly 4 years later).
Since a majority of the votes counted were "yes," another race-based election was held on January 17, 1999 under state and then private sponsorship (HSEC and Ha Hawai'i) to elect delegates to a Native Hawaiian convention. At that time there were 101,951 State of Hawai'i voters (18 or older) who had registered themselves as being ethnic Hawaiian to be able to vote in OHA elections. Only 8,867 votes were actually cast for delegates to the Native Hawaiian convention, once again representing about 9% of those eligible. Incidentally, that convention held sporadic meetings for several years, some sparsely attended; and in the end most of the delegates supported independence rather than an Akaka-style U.S. tribal concept.
It will be argued that other Indian tribes are not required to have a majority of eligible people vote yes or sign the membership roll before the tribe can be activated. That might be true. But supporters of the Akaka bill now frequently say this bill is not creating an Indian tribe -- this bill is sui generis (unique, all by itself). Furthermore, no other tribe in America has had the U.S. Census Bureau create a check-box for itself to make it possible to count its potential enrollment. Haunani Apoliona, Chair of the Office of Hawaiian Affairs, served for several years prior to Census 2000 as Chair of the Native Hawaiian and Other Pacific Islanders Subcommittee of the U.S. Department of Commerce Census Advisory Committee on Asian and Pacific Islander Populations. In that capacity she lobbied zealously to get a separate checkbox for "Native Hawaiian" to be placed on all the Census forms, so that OHA could get more powerful in demanding federal handouts. She was successful. So now we know the minimum number of Native Hawaiians as of April 2000. And now it's time to use that information to set a quorum for the only alleged Indian tribe (or whatever you want to call it) whose minimum potential size is known.
SOLUTION: The Akaka bill needs an amendment to set a quorum of ethnic Hawaiians required to activate it. The amendment should also set a deadline for assembling the quorum, so that the political situation in Hawai’i, and judges in courts of law, can proceed without any confusion whether someday there will be a Native Hawaiian government. The Akaka bill should include a provision that there will be no federal recognition of any right to form a Native Hawaiian governing entity until at least 50% of all Native Hawaiians ages 18 or over have either certified their ancestry and voted to approve the concept, or have actually signed the membership roll and been certified to the Secretary of Interior as members of a proposed Akaka nation or tribe. The “Commission” identified in Akaka bill Section 7(b) would be given the responsibility of certifying to the U.S. Secretary of Interior that this requirement has been met. And Section 7(a) would be amended approximately as follows (let the lawyers write the exact language): The right of the Native Hawaiian people to reorganize the Native Hawaiian governing entity to provide for their common welfare and to adopt appropriate organic governing documents is recognized by the United States if and only if, within two years of enactment of this legislation, at least 126,504 enrolled members are certified to the Secretary of Interior in the manner described in Sec 7(c)(1) “Roll.”
(2) The concept of requiring any negotiated settlement package to be approved by a secret ballot majority vote among all enrolled members of the Akaka tribe (63,252 “yes” votes required)
PROBLEM: The Akaka bill envisions that the Native Hawaiian governing entity (tribal council) will negotiate with the federal and state governments to get land, money, and jurisdiction. But the Akaka bill as written would allow the tribal council to make partial settlements or a global final settlement of all issues (as must be done within a 20-year deadline), without any ratification by the enrolled members. That would be comparable to allowing the state Legislature to enact Constitutional amendments making major changes to land ownership, methods of taxation, and voting rights without putting them on the ballot for a vote of the people. SOLUTION to be listed after describing a similar problem (3)
(3) The concept of requiring any negotiated settlement package to be approved first by the Legislature for placing on the ballot, and then to be approved in a general election of the State of Hawai’i under the same procedures used for ratifying a Constitutional amendment.
PROBLEM: The Akaka bill as written allows sweeping changes to be made to fundamental law, with permanent consequences to all Hawai’i’s people, without requiring those changes to be ratified by a vote of the people. The question whether the lands, resources, and laws of Hawai’i should be divided into separate racial jurisdictions is at least as important to all Hawai’i’s people as was the question whether Hawai’i should be admitted to Statehood. It is certainly more important than the four Constitutional amendments on the ballot in November 2004. The Legislature and Governor are likely to rubber-stamp almost anything demanded by the Native Hawaiian entity, as demonstrated by the recent history of giving DHHL $30 Million per year for 20 years, and giving OHA tens of millions each year in ceded land revenues and tax appropriations. The reason that happens is because ethnic Hawaiians make up 20% of the population, and are perceived by politicians as the “swing vote.” The Legislature has already voted unanimously, in two different sessions, on a resolution to support the Akaka bill; even though there is strong opposition to that bill. It is essential that all Hawai’i’s people must be allowed to vote on the specific package emerging from settlement negotiations. Unless the Akaka bill requires a vote of the people, it is unlikely the Legislature will put any negotiated settlement on the ballot for an up or down vote.
SOLUTION TO BOTH PROBLEM (2) AND PROBLEM (3)
The existing Section 8(b)(2) should have a revised subsection B and a new subsection C added after subsection B. (A link is provided at the end of this essay to see the text of the Akaka bill.) The order of the subsections might be changed, to indicate that first the negotiated package should be ratified by the enrolled members of the Native Hawaiian entity; then ratified by the people of Hawai’i; then finally ratified by the U.S. Congress. The revised Section 8(b)(2) might read as follows (let the lawyers figure out the exact language):
Section 8(b)(2) AMENDMENTS TO EXISTING LAWS.--Upon agreement on any matter or matters negotiated with the United States, the State of Hawaii, and the Native Hawaiian governing entity, the parties are authorized to submit--
(A) first to the Native Hawaiian governing entity, all recommendations for proposed amendments to either Federal or State law that will enable the implementation of agreements reached between the 3 governments; with the requirement that such amendments must be submitted to a vote of the enrolled members of the Native Hawaiian entity as a single package for a “yes” or “no” vote by secret ballot, the package to be accepted by the governing council only if an absolute majority of all enrolled members vote “yes;” and
(B) second to the Governor and the legislature of the State of Hawaii, recommendations for proposed amendments to State law that will enable the implementation of agreements reached between the 3 governments; with the requirement that such amendments must be submitted to a vote of the people of Hawai’i as a single package for a “yes” or “no” vote in the manner established under Hawai’i law for ratifying State Constitutional amendments; and
(C) third to the Committee on Indian Affairs of the Senate, the Committee on Energy and Natural Resources of the Senate, and the Committee on Resources of the House of Representatives, recommendations for proposed amendments to Federal law that will enable the implementation of agreements reached between the 3 governments.
(4) The concept of reaching finality -- a global settlement
PROBLEM: The Akaka bill allows twenty years for the Akaka tribe to file a multitude of lawsuits against the United States before time runs out to reach a global settlement; and it provides no time limit at all for lawsuits against the State of Hawai’i. Thus there could be never-ending conflict between ethnic Hawaiians and the remaining 80% of Hawai’i’s people, as the tribe uses a settlement of one issue to serve as a springboard to the next. If the Akaka bill is genuinely to provide a vehicle for reconciliation, there must be a global, final settlement of all issues among Native Hawaiians, the State of Hawai’i, and the U.S government; and that settlement must be achieved sooner rather than later. The civil war to divide Hawai’i must be resolved once and for all. As Abraham Lincoln said in his second inaugural address toward the end of the Civil War: “With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the wounds ...” Some might complain that a short time limit for achieving a final settlement is too steamrolleresque. But without a final settlement in a reasonable amount of time, the Akaka tribe becomes a steamroller that flattens the 80% of Hawai’i’s people who are not eligible to join the tribe along with a substantial number of ethnic Hawaiians who cannot stomach the thought of racial separatism.
SOLUTION: Amend Section 8(c) to contain the following concepts (let the lawyers figure out the precise wording):
Sec 8(c) CLAIMS.--
(1) IN GENERAL.--This Act sets in motion the sole process for the final settlement of all claims by Native Hawaiians against the United States and/or the State of HAwai’i.
(2) STATUTE OF LIMITATIONS.--Any unsettled claim against the United States or State of Hawai’i arising under Federal law or State law that--
(A) is in existence on the date of enactment of this Act;
(B) is asserted by the Native Hawaiian governing entity on behalf of the Native Hawaiian people; and
(C) relates to the legal and political relationship among the Native Hawaiian people, the State of Hawai’i, and the United States;
shall be brought in the court of jurisdiction over such claims not later than 5 years after the date on which Federal recognition is extended to the Native Hawaiian governing entity under section 7(c)(6). Thereafter no further claims can be brought except for new claims arising out of events that occur following the expiration of this statute of limitations.
(5) The concept of changing “may” to “shall” in many instances
PROBLEM: As mentioned earlier, the Akaka bill has many steamroller aspects whereby the tribal council might (but is not required to) submit governing documents to the enrolled members for ratification; the council might (but need not) submit a negotiated settlement to tribal members for ratification; the U.S. Secretary of Interior might (but is not required to) establish a process for appeals by individuals seeking to be included on the tribal roll; the Secretary must make the roll official even if there are unresolved appeals; etc.
SOLUTION In the following items, the word(s) to be stricken has been placed in [square brackets] and the word(s) to replace it is in CAPITALS.
Sec 7(c)(1)(G) APPEAL.--The Secretary [may] SHALL establish a mechanism for an appeal for any person whose name is excluded from the roll who claims to meet the definition of Native Hawaiian in section 3(8) and to be 18 years of age or older.
Sec 7(c)(1)(I) FAILURE TO ACT.--If the Secretary fails to publish the roll, not later than 90 days after the date on which the roll is submitted to the Secretary, the Commission shall publish the roll [notwithstanding any order or directive issued by the Secretary or any other official of the Department of the Interior to the contrary.] UNLESS THE SECRETARY PROVIDES THE COMMISSION A WRITTEN EXPLANATION FOR REFUSING TO PUBLISH THE ROLL AND OFFERS A PROPOSED REMEDY.
Sec 7(c)(2)(B)(iii)(I) IN GENERAL.--The Council [may] SHALL conduct a referendum among the adult members of the Native Hawaiian community listed on the roll published under this subsection for the purpose of determining the proposed elements of the organic governing documents of the Native Hawaiian governing entity, including but not limited to--
Sec 7(c)(2)(B)(iii)(III) DISTRIBUTION.--The Council [may] SHALL distribute to all adult members of the Native Hawaiian community listed on the roll published under this subsection--
Sec 7(c)(2)(B)(iii)(IV) ELECTIONS.--The Council [may] SHALL hold elections for the purpose of ratifying the proposed organic governing documents, and on certification of the organic governing documents by the Secretary in accordance with paragraph (4), hold elections of the officers of the Native Hawaiian governing entity pursuant to paragraph (5).
Sec 7(c)(4)(B)(ii) AMENDMENT AND RESUBMISSION OF ORGANIC GOVERNING DOCUMENTS.--If the organic governing documents are resubmitted to the Council by the Secretary under clause (i), the Council [shall--] MAY--
Sec 7(c)(4)(C) CERTIFICATIONS DEEMED MADE.--The certifications under paragraph (4) shall be deemed to have been made if the Secretary has not acted within 90 days after the date on which the Council has submitted the organic governing documents of the Native Hawaiian governing entity to the Secretary UNLESS THE SECRETARY NOTIFIES THE COUNCIL THAT THE SECRETARY WILL PROVIDE WRITTEN OBJECTIONS BY A SPECIFIED DATE
Sec 7(c)(5) ELECTIONS.--On completion of the certifications by the Secretary under paragraph (4), the Council [may] SHALL hold elections of the officers of the Native Hawaiian governing entity.
Sec 8(b)(2) AMENDMENTS TO EXISTING LAWS.--Upon agreement on any matter or matters negotiated with the United States, the State of Hawaii, and the Native Hawaiian governing entity, the parties [are authorized to] SHALL submit--
** Note: The most recent previous version of the Akaka bill used the language “SHALL” which I am proposing to restore. The fact that that language was changed to “are authorized to” is very significant, since very few changes were made to the bill before reintroducing it on January 25, 2005. The effect of changing the language to “are authorized to” could be interpreted to say that the very important agreements among the U.S., State of Hawai’i, and Native Hawaiian entity need not be submitted to all (or any) of them for ratification. It is hard to imagine why the significant step of changing that small phrase was made.
The complete text of the most recent version of the Akaka bill can always be seen here:
Why all America should oppose the Akaka bill: A 5-paragraph summary followed by extensive documentation of all the main points
Honolulu attorney Paul M. Sullivan has updated his 61-page point-by-point analysis of the Akaka bill, “Killing Aloha”, including cartoons by Daryl Cagle
Professor Conklin’s Red-Pen Corrections and Comments on Speeches by Dan Akaka, Dan Inouye, Ed Case, and Neil Abercrombie When Introducing the Hawaiian Recognition Bill on January 25, 2005
The history of the Akaka bill related to the current 109th Congress will be continuously updated in chronological order; scroll to the bottom of the webpage linked here, for the latest news
Akaka bill, Alaska Oil money, Native Alaskan Corporations, Council for Native Hawaiian Advancement, Drilling in the Alaska National Wildlife Refuge, Gambling Casinos, and Alaska Senator Ted Stevens -- How They’re All Related
Native Hawaiian Opposition to the Native Hawaiian Recognition Bill
If the Akaka bill passes, it will severely damage the democratic and constitutional rights of ethnic Hawaiians, both those who join the tribe and those who do not.
The Impact of Tribal Recognition On Local Businesses and Neighborhoods
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(c) Copyright 2005 Kenneth R. Conklin, Ph.D. All rights reserved