POSTED: 1:30 a.m. HST, Mar 9, 2011
The Native Hawaiian Government Reorganization Act, broadly nicknamed "the Akaka Bill" after its primary sponsor, U.S. Sen. Daniel Akaka, is also known for its ultimate goal of federal recognition for Hawaiians. The focus has been fixed on that end result, in which the newly formed political group becomes the official representative of the Hawaiian people, as far as the federal government is concerned.
Now that the bill has stalled before political hurdles in the U.S. Capitol -- a bar raised even higher with Akaka's retirement next year -- Hawaiians are seeking another path. The basic idea is a sound one: Start with the reorganization part, and seek federal recognition later. But the devil is in the details, and, depending on the language of the final state legislation, some of the details are troubling.
Two competing bills -- Senate Bills 1 and 1520 -- are moving through the state Capitol, both laying out the steps: creating a voter roll, drawing up the documents of a government, having the electorate ratify it. Then the state would recognize the new political entity, which would render the Office of Hawaiian Affairs extraneous.
When OHA was authorized following the state Constitutional Convention of 1978, the delegates -- and the voters who ratified the amendments -- reflected a consensus that Hawaiians deserved a share of revenue from lands that were ceded to the U.S. following the overthrow of the monarchy.
This revenue formed the corpus of the Native Hawaiian Trust Fund, which underwrites many programs aimed at bettering conditions for Hawaii's indigenous people. OHA became "a trust vehicle to act on behalf of native Hawaiians until a native Hawaiian governing entity could be reestablished," according to SB 1.
Either bill would enable the closing of that loop, putting an indigenous government in charge of the trust fund and other assets that OHA now controls. That ultimately would be a fuller measure of sovereignty, albeit one within the confines of the state, than having a state agency run things.
Unfortunately, both bills involve the state too directly in the government formation, drafting some combination of governor, House speaker and Senate president to appoint the initial commission that creates the voter roll. Both also would appropriate tax funds for implementation. Once the state becomes so enmeshed in an action benefiting only a specific ethnic group, the action runs the risk of a constitutional challenge. It would be better if only money that was set aside for indigenous programs -- the trust fund -- be used.
Further, at least SB 1 leaves too many things unsaid. It should be plainly stated that members of the new government will be subject to state and federal laws. Changes to the Hawaiian government powers will be negotiated with the state, according to the bill, but what rights exist at the start is never defined. They're merely described as "inherent powers and privileges of self-government." That's pretty murky and sure to put off many people, including those who otherwise might support the overall goal of the measure.
Some better approaches have been floated by OHA, which would have most of the key decisions made by a panel that's unaffiliated with a state agency, and certainly not funded with tax dollars. The wiser course of action at this point would be to table these bills until they can be repaired. While Akaka Bill backers are surely frustrated that legislation has stalled at the federal level, it makes no sense to charge ahead with a state bill that could easily land the state in another legal quagmire.