Tuesday, November 24, 2015         


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Reintroduced Akaka Bill not a threat to state’s authority

By Jon M. Van Dyke


The Star-Advertiser’s Sunday editorial scolded U.S. Sen. Daniel Akaka for reintroducing the version of the Native Hawaiian Government Reorganization Act (frequently called the Akaka Bill) recommended in late 2009 by the career civil servants at the Justice Department, rather than the version that emerged later with amendments based on recommendations of Gov. Linda Lingle and then-Hawaii Attorney General Mark Bennett (“Akaka should submit bill that had Lingle’s support,” Star-Advertiser, Our View, April 3). 

It needs to be emphasized how modest those later amendments were, and how close to complete agreement all of Hawaii’s leaders are on this important bill.

The amendments focused on the immunities that the native Hawaiian governing entity will have between (1) the time the governing entity receives formal federal recognition and (2) the time that Congress passes a separate statute returning lands to the governing entity.

During this interim period, under the Justice Department version, the governing entity could exercise some authority over those on the roll of qualified native Hawaiian constituents, involving, for instance, marriages, adoptions, and custody. It might also engage in some economic activities and administer some lands that it has gained through purchase or other transfer.

Under the Justice Department version, the governing entity would be “vested with the inherent powers and privileges of self-government of a native government under existing law,” except that it could not “conduct gaming activities as a matter of claimed inherent authority or under the authority of any Federal law.” It could thus operate in a manner similar to that of the other 550-plus native nations in the United States.

The Lingle version stated explicitly that the activities of the governing entity would be subject to the state’s regulatory authority with regard to health and safety and would not have immunities from suit in these areas, and that the officers and employees of the governing entity would not be immune from the state’s criminal laws.

It would seem that the state will also retain these essential powers under the Justice Department version, which says that “nothing in this Act shall preempt Federal or State authority over Native Hawaiians or their property under existing law” (Section 9(b)(3)).

The Justice Department has nonetheless opposed the Lingle language, because it might impact the law that has evolved regarding relations between native governments and the state and federal governments.

The Star-Advertiser editorial complains that the Justice Department version “would give the native governing entity broad power from the outset, before even beginning negotiations with the state.”

That appears to be an overstatement, because the governing entity will lack land and resources and will only be able to govern the activities of its members.

But it should be given a chance to start exercising some governing authority, and should have the limited sovereign immunity that all autonomous governments enjoy. That, after all, is the point of this important bill: to recognize the unique status of our host culture and to help rectify the injuries caused by the illegal overthrow of the Hawaiian kingdom in 1893 and the uncompensated takings of the kingdom’s lands by the United States in 1898 by permitting native Hawaiians to govern themselves once again.

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