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The Honolulu Advertiser
Posted on: Thursday, July 14, 2005 Posted on: Thursday, July 14, 2005

Justice Dept. wants Akaka bill altered

By Gordon Y.K. Pang
Advertiser Staff Writer


The major criticisms of the Akaka bill raised in a letter from the U.S. Department of Justice: i The provision for claims by Native Hawaiians against the federal government is too open-ended. The current draft of the bill sets a statute of limitations allowing a 20-year time span for claims — starting the clock from when the new government gains federal recognition. More typically, the window for federal claims remains open for two years. i Amendments should clarify that negotiations among the federal, state and Native Hawaiian governments must not lead to concessions that would interfere with military operations. This concern arises from the fact that military installations at Pearl Harbor, Hickam and Lualualei sit on Hawaiian kingdom lands ceded to the federal government. Some have asserted that this land, or at least compensation for it, should go to Hawaiians. i The bill should state clearly which government would enforce criminal laws on Native Hawaiian lands. Officials of the U.S. Department of Interior have said they don\'t want a repeat of the clashes that have arisen with Native American tribes over this issue. i The legislation should specifically bar gambling rights for a Native Hawaiian government. Language in the current draft already indicates that the new law would not extend existing native gaming authorization to Hawaiians; it was inserted to assuage concerns among some tribes about casino competition. The Justice Department seeks a clearer prohibition. i The fifth request deals not with questions of government policy but with constitutional concerns over racial provisions of the bill that may conflict with the U.S. Supreme Court ruling in Rice v. Cayetano. The department suggests one remedy: The commissioners named to certify the Native Hawaiian membership rolls should be required to have expertise with Native Hawaiian issues but not to be Hawaiian themselves.

The Department of Justice yesterday raised "serious policy concerns" about the Akaka bill.

Among other issues, the department wants to shorten or eliminate the time allowed for monetary claims by Hawaiians; add language that explicitly prohibits gambling; and allow non-Hawaiians to sit on the panel that would chart the course of a sovereign Hawaiian entity.

The department issued a two-page letter stating those concerns about the Native Hawaiian federal recognition bill to U.S. Sen. John McCain, R-Ariz., chairman of the Senate Indian Affairs Committee, just days before a crucial Senate vote is expected.

Opinions were mixed yesterday on what impact the letter might have on the bill's chances.

The Justice Department wants:

  • Explicit language precluding future claims for land once held by Native Hawaiians and, if not, shortening the statute of limitations for claims from the proposed 20 years.

  • Lawmakers to ensure that the bill would in no way interfere with U.S. military operations.

  • Further clarification that the governing entity would not have gambling rights.

  • Clarification on who would have jurisdiction to enforce criminal laws on Hawaiian land.

  • Non-Hawaiians to be eligible to serve on a commission that would certify who would be part of a Native Hawaiian government.

    The department also raised the issue of whether recognizing Native Hawaiians would be constitutional, but suggested several changes that may resolve the Bush administration's concerns.

    The administration had not taken a position on the bill, known as the Akaka bill for its sponsor, U.S. Sen. Daniel Akaka, D-Hawai'i, but Republicans have blocked it since 2000 over objections that it is racially based.

    The bill would establish a process for the United States to formally recognize the nation's 400,000 Native Hawaiians as an indigenous people similar to American Indians and Alaska Natives. Native Hawaiians would then decide whether to pursue a sovereign government that could negotiate with the U.S. and the state of Hawai'i over land use and other rights.

    The Justice Department letter was signed by William Moschella, an assistant attorney general who had previously raised constitutional concerns over separate legislation aimed at helping Native Hawaiians.

    Hawai'i Attorney General Mark Bennett, who has been lobbying senators to support the bill on behalf of Gov. Linda Lingle, said he views the letter as "an extremely positive development."

    But Bennett acknowledged the Justice Department again raised the question of whether the bill was constitutional, specifically whether a Native Hawaiian government would conflict with the Supreme Court ruling in Rice v. Cayetano in 2000. The court ruled it was unconstitutional to prohibit non-Hawaiians from voting for trustees to the state Office of Hawaiian Affairs.

    But Bennett does not view that as a problem.

    "I feel very confident that the Supreme Court would uphold the Akaka bill," he said. "I think it's quite significant that the Department of Justice didn't express an opinion that the bill was unconstitutional, but rather simply said the Supreme Court had left this as an open question, which indeed the Supreme Court did."

    Hawai'i's senators were cautiously optimistic.

    Mike Yuen, a spokesman for U.S. Sen. Dan Inouye, D-Hawai'i, said: "The senator is pleased that the administration has now provided its views on the Native Hawaiian Government Reorganization Act. He looks forward to working with the administration to ensure that the legislation continues to have bipartisan support that would lead to its passage."

    Akaka also expressed hope.

    "I welcome the administration's suggestions and am working with administration officials to address the issues expressed in their letter," he said in a statement. "I am confident we can reach common ground on the identified issues. I am even more optimistic about our efforts to enact this legislation."

    Haunani Apoliona, the chairwoman of the OHA board of trustees, and OHA administrator Clyde Namu'o said they believe some of the issues raised in the letter can be easily addressed while others may not.

    "I don't think our senators and the governors are going to rewrite everything," Apoliona said. "What this provides is a point of discussion."

    Namu'o said OHA would not have any problems with the bill being amended to include the Justice Department's language pertaining to gambling and criminal jurisdiction.

    "They're pretty innocuous," he said.

    The issue of federal military bases is something that would have to be agreed to between the federal government, the state and the new government entity down the line and is not something that can be resolved immediately, Apoliona said.

    On the issue of a shorter time frame for Native Hawaiians to make claims, Apoliona said, "20 years is good. ... It's very generous from what I understand, but we're not advocating shortening it."

    William Burgess of Aloha for All, which opposes the Akaka bill, said the letter points out to senators that "there are some absurd features to this law and if you really want to pass it, then you've got to get rid of these things."

    Burgess said he is pleased the letter made a reference to the bill's constitutionality. "Is the whole damn thing constitutional? I think this is a message from the administration saying that if you want us to even seriously consider that, then you've got to clean up these other five things," he said.

    "I think it's a good letter," he said. "It's realistic. It doesn't preclude the proponents of the bill from doing something."

    Burgess said Aloha for All would still oppose the bill if the issues raised in the letter were addressed because his group's basic premise is that the legislation is race-based. But, he said, "it would make it harder to convince people that it's absurd."

    Lilikala Kame'eleihiwa, former director of the University of Hawai'i at Manoa's Center for Hawaiian Studies, said she was appalled by the suggestion in the letter that future claims for reparations be eliminated, or the time frame reduced.

    "The Department of Justice shows that it has no justice for the native people by this letter," she said. "Precluding us from gaining any land while having a government and federal recognition is unacceptable to all Hawaiians."

    Rather than shortening the time frame for making claims, she said, "we thought 20 years was too short. We had over 100 years of America's government taking our land illegally and we're supposed to fix it all in 20 years? I don't think so."

    Richard Rowland, president of the Grassroot Institute of Hawai'i, said he's happy the Bush administration has begun to voice its concerns, but noted the letter does not address the institute's main concern that a state vote should be held on the bill.

    "Our position is we've got to have a vote of the Hawai'i people," Rowland said. While he and other members of the institute "think this bill stands democracy on its head," it would be more palatable if a majority of the state's voters supported it in a referendum, Rowland said.

    Lingle announced yesterday that she will go to Washington, D.C., next week to talk to key senators about the Akaka bill.

    Lingle will join Bennett, Namu'o and eight of the nine OHA board members who are also scheduled to be in the capital when the Akaka bill is debated on the Senate floor.