Native Hawaiians could not bring a land claim against the U.S. government in the courts under an amendment to the Akaka bill that is being proposed to appease the White House and opponents of the bill.
Instead, such claims would have to be taken to a federally recognized Hawaiian governing entity that would then negotiate with the federal and state governments, according to the language in the amendment that was released by Sen. Daniel Akaka's office yesterday.
The Akaka bill starts a process that would lead to federal recognition of a Native Hawaiian entity. Supporters say it is necessary not just to address wrongs committed by the U.S. government, but will help stave off legal challenges to programs — including the Office of Hawaiian Affairs and Kamehameha Schools — that give preference to Hawaiians.
Andre Perez, a member of Hui Pu, an umbrella group of Native Hawaiian groups opposed to federal recognition, said the newest language makes a bad bill even worse.
He noted that the previous draft allowed Native Hawaiians to make claims on their own against the government for up to 20 years, a time limit that already was unpalatable.
"We'll be barred from seeking any recovery of any losses or damages against us over the last 112 years," Perez said. "That's a pretty good deal for them."
Akaka, in a news release, acknowledged that the land claims issue has been a sticky one for the U.S. government. "I have always said that longstanding issues, including land claims, were to be addressed in the process of reconciliation — an ongoing dialogue between Native Hawaiians and the United States."
A fact sheet distributed by Akaka said that "the (Bush) administration sought to extinguish all existing claims by Native Hawaiians related to breach of trust, land claims and resource-management or resource-protection claims."
The Hawai'i delegation and Gov. Linda Lingle "prevailed in preventing the extinguishment of claims," the fact sheet said.
Said Akaka spokeswoman Donalyn Dela Cruz: "The senator realizes there may be some people who may be unhappy with the compromises we have had to make. But the senator's focus is on ensuring that we can enact this bill so that we can organize a Native Hawaiian government entity for the purposes of a government-to-government relationship with the United States."
Jon Osorio, director of the Center for Hawaiian Studies at the University of Hawai'i-Manoa, echoed the comments of Perez and said he believes that the bill waters down a measure that already does not go far enough in addressing any harms that may have been committed against Hawaiians by the U.S. government.
"What it looks like to me is because the U.S. government is claiming sovereign immunity that cannot be challenged in court, and the state also has this protection, it means that virtually everything that will become part of this nation, land and resources, are things that are going to be negotiated at the outset," Osorio said.
"What they're saying is everything is not subject to the courts. And because the U.S. is acknowledging a single government entity, in my mind, this is intended to invalidate any future claims by anyone."
'ONLY REALISTIC WAY'
Hawai'i Attorney General Mark Bennett said resolving the claims through the negotiations process is "the only realistic way of approaching the claims." In the 47 years since statehood, he said, there has not been a successful claim against the government.
The points in the amendment outlined yesterday also did little to appease Akaka bill opponents who believe that carving out special privileges for Native Hawaiians is unfair to non-Hawaiians.
The amendment is not designed to make local opponents of the bill happy, however. The measure has stalled in the Senate this summer because of concerns raised by the White House and some Republican lawmakers. The amendments address "serious policy concerns" laid out specifically in a memorandum by the Justice Department in July.
Justice Department officials could not be reached after business hours to confirm the agreement.
But Dela Cruz said the state's congressional delegation, together with the state attorney general and the staff of Senate Indian Affairs Chairman John McCain, was able to craft the compromise language with a team from the Justice Department's legislative affairs office headed by Deputy Assistant Attorney General Rebecca S. Seidel.
H. William Burgess of the anti-Akaka bill organization Aloha for All, said the amendment "certainly changes the bill for the better."
The stipulation barring Native Hawaiians from making direct claims against the state and federal governments "very effectively closes most of the chances of opening up litigation in the future although it doesn't eliminate it," Burgess said.
The previous version of the bill, he said, "was an open invitation for the next 20 years to come in and ask for whatever you want."
Burgess also said the new language effectively bars gambling as well.
Nonetheless, Burgess said, his group still opposes the Akaka bill on more fundamental grounds.
"The destructive core of the bill remains intact," he said. "And that's the real toxic part of this bill that would create a new, privileged class in America. It's going to subdivide not just Hawai'i but the United States."
WAIVER FOR MILITARY
Ikaika Hussey, a member of Hui Pu, objected to the language in the amendment waiving the U.S. military from participating in any of the talks involving the creation of the new government.
"It's now very clear that this bill will not protect our home, or our 'ohana, from the Stryker brigade land-grab, and will not assist in the cleanup and return of land to families whose land was seized for military use," Hussey said.
Trustees for the Office of Hawaiian Affairs, which has supported the Akaka bill, issued a news release stating that they were reviewing the language with their attorneys and would comment at a later time.
Previously, OHA board chairwoman Haunani Apoliona had also acknowledged that the claims issue was a difficult one to resolve.
NO SENATE TIMETABLE
Meanwhile, there is still no timetable for when the Senate might discuss whether to have a floor debate and vote on the bill.
OHA administrator Clyde Namu'o said he's been told it likely won't come up before the third week of October. "Most people that I've spoken to indicate that they believe that it probably will come up sometime in the middle or third week in October," he said
Republican leaders had promised Hawai'i's delegation that a parliamentary move called a cloture vote would take place last week but it was postponed indefinitely to allow senators to deal with the Hurricane Katrina disaster.
A cloture vote on the Akaka bill would essentially force the Senate to set other issues aside to allow for a debate and vote.
Dela Cruz, Akaka's spokeswoman, said her office has not received word from the Senate majority staff on the matter. The Senate is still focused on addressing Katrina's impacts, she said.
Nonetheless, she said, Akaka is confident the bill will come for a vote before the session ends.
"This is not over," Dela Cruz said. "The senator is still pressing for his bill to get on the calendar."
Reach Gordon Y.K. Pang at firstname.lastname@example.org.