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The Honolulu Advertiser
Posted on: Sunday, May 2, 2004

Misinformation abounds on revisions to Akaka bill

By Clyde Namuo

A lot of misinformation and false accusations are circulating on the Internet and elsewhere regarding the recent revisions to the Akaka bill. We wish to set the record straight on some of that misinformation.

An April 20 "Action Alert" states that "all historic claims will not be allowed" under the revised Akaka bill. This is not necessarily true.

The bill states that the U.S. District Court in Hawai'i will have:

• "Original jurisdiction over any existing claim against the U.S. arising under federal law existing on the date of enactment of this act and relating to the legal and political relationship between the U.S. and the Native Hawaiian governing entity."

This affirmative statement of jurisdiction does not necessarily negate jurisdiction over historic or other claims, in this or other forums. It does raise questions of whether "original" jurisdiction is the equivalent of "exclusive" jurisdiction.

It leaves unaddressed claims under international law or in international arenas. This section needs to be carefully reviewed before making conclusive remarks.

The Action Alert also states that the revised Akaka bill requires:

• "A global settlement for Hawaiian lands and revenues ... and that the U.S. Congress and the state Legislature must pass laws approving the global settlement before the (Hawaiian) nation is recognized."

The Action Alert cites Sec. 8(b)(13) and Sec. 7(4)(a) in support of this statement; however, there are no such section numbers.

That makes it difficult to directly address the concerns that are raised. If the Action Alert intended to cite sections 7(c)(4), 7(c)(6), and 8(b), those sections do not make a bright-line statement, as claimed in the Action Alert.

Again, these sections require careful legal analysis.

• The Action Alert goes on to say that press statements indicate the "deal was worked on by the state (... OHA)." However, OHA is not the state of Hawai'i. Although OHA is a quasi-state agency, its structure and mission are unique and removed from the state of Hawai'i. Its mission and statutory obligation is to work toward the betterment of its beneficiaries, Native Hawaiians. As a trust entity, its trustees are obligated under U.S. law to work only in the interest of beneficiaries. Therefore, its obligation is not to the state of Hawai'i but to the Native Hawaiian people.

Moreover, OHA did not engage in any "deal" to bring about these changes. The negotiations between our congressional delegation, the Republican leadership, and the Department of Interior were held outside of OHA's purview and were presented to OHA in final form just as they were presented to the general community in final form.

Lastly, the Action Alert also states that OHA has spent more than $4 million in illegal lobbying for the Akaka bill. OHA has not spent anywhere near $4 million in lobbying for the Akaka bill. OHA has spent something less than $1 million for lobbying for the Akaka bill.

It is important to note that OHA does not believe that lobbying for the Akaka bill is an illegal use of OHA funds. In fact, OHA trustees feel they have a fiduciary duty to seek passage of the Akaka bill to preserve federal recognition as an option should the Hawaiian people later decide that they want federal recognition as a form of government.

To prevent any misunderstanding, let me clearly state: OHA trustees are not dictating federal recognition as the form of government for the Native Hawaiian people. They are merely seeking to keep federal recognition available as an option. The Native Hawaiian people may choose or not choose federal recognition when the time comes to select a form of government.

That said, OHA trustees do have concerns about some recent revisions to the Akaka bill. Because of the sensitive nature of any law which limits our ability as Native Hawaiians to seek relief which we are entitled to, OHA is soliciting the input of national legal experts in the field of American Indian law and indigenous rights. We agree there are two significant changes being offered in this new version of the Akaka bill:

• Section 7 calls for the creation of a nine-member commission appointed by the secretary of the interior. All members of the commission must be Native Hawaiian.

• Section 8 establishes a 20-year limit during which the Native Hawaiian governing entity may bring claims to the U.S. District Court in Hawai'i. It should be noted that this 20-year statute of limitations is considered by experts in the field of Indian law to be extremely generous. In other federal recognition legislation, the statute of limitations has ranged from one year to six years.

It is also important to note that the claims referred to in the Akaka bill are claims made by the sovereign Native Hawaiian governing entity to the sovereign government of the United States.

Until the expert legal analysis is complete, we urge all Hawaiians to engage in mature, thoughtful, meaningful and constructive discussion. OHA does not have a secret agenda.

We expect there will be disagreement. But if we can keep the end goal of self-determination in mind, it will be easier to work together as we all seek the best options for the Native Hawaiian people.

You may wish to review a side-by-side comparison of the prior version of the Akaka bill (amended June 2003) with this most recent revision. It is available at www.nativehawaiians.com.

Clyde W. Namuo is administrator at the state Office of Hawaiian Affairs.