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The Honolulu Advertiser
Posted on: Sunday, September 25, 2005

Akaka bill promotes redress

By Charles Wilkinson

After six long years and many years of preparation before that the Akaka bill is heading for a vote in the U.S. Senate. Negotiations of the past few weeks among the Hawai'i congressional delegation, the state of Hawai'i and Bush administration officials apparently have resolved most outstanding issues.

The resulting amendments are technical in nature but, because of the bill's importance, deserve to be looked at closely. The principal additions have to do with land and money claims by the new Hawaiian government.

The key to grasping these matters is an understanding of sovereign immunity. This ancient and outmoded doctrine comes from Old England. Because, it was reasoned back then, "the King can do no wrong," a sovereign cannot be sued unless it gives its consent.

When the United States broke away from England, it kept many elements of British law, including the doctrine of sovereign immunity. Right or wrong, the rule remains in effect today. The United States and the state of Hawai'i (and native governments) cannot be sued unless they agree to be sued.

Obviously, the immunity doctrine can cause unfairness. Congress and state legislatures have authorized waivers of their immunity that cover many different kinds of injuries the governments or their employees cause. But sovereign immunity has never been waived outright. In particular, waivers involving federal and state lands have been few and narrow.

Therefore, it is possible to have an entirely valid claim against a government but be unable to bring a lawsuit because the government has not waived sovereign immunity.

Before the Akaka bill was introduced, there were no sovereign immunity waivers that applied to damages caused by the overthrow and other historic events.

From the beginning, the Akaka bill was neutral on claims. The delegation knew that it would not be politically possible to create new claims and a large and unknown federal financial liability by waiving federal sovereignty. On the other hand, the delegation and the state were adamant that it would be immoral to extinguish claims that would be valid except for sovereign immunity.

That didn't stop opponents of Native Hawaiians from attempting to extinguish Native Hawaiian claims. Recently, they made another push to put extinguishment language in the bill.

The delegation and state held firm. Although the administration insisted on additional verbiage in Section 8, in the end there is no change on immunity. The key phrase is that the federal government and the state each "retain" their existing sovereignty immunity. The situation remains the same as before the Akaka bill was introduced.

Further, the recent amendments include provisions beneficial to Native Hawaiians. After the bill is signed into law, the Native Hawaiian, state and federal governments will engage in negotiations over sovereignty, reparations and other issues. Section 8 now provides that these negotiations will include "grievances regarding assertions of historical wrongs committed against Native Hawaiians by the United States or by the state of Hawai'i."

This provision is a pointed reminder that Native Hawaiians have been wronged, by the overthrow and otherwise, and that a valid claim remains even though sovereign immunity bars court action. It is reasonable to expect that the Native Hawaiian government will seek and will receive the Hawaiian Home Lands; the assets of the Office of Hawaiian Affairs, with an estimated worth of approximately $350 million; perhaps some of the ceded lands now under government control; and money damages. The "historical wrongs" language just added to the bill should further that expectation.

The legislation will create a promising new forum for redress the negotiations among the three governments.

This may end up being better than the courts. The truth is, while some Mainland tribes have achieved some satisfaction in various claims processes, the court cases have also brought many frustrations. Among other things, most have dragged on for decades and many have cost millions. When tribes did reach good results, they occurred at negotiating tables.

Native Hawaiians are well-positioned to make progress after the bill becomes law. The United States is likely to defer to the state on many issues. While all native groups wish for much more than they receive from the dominant society, the state of Hawai'i has been a valuable ally throughout this process and generally has been more receptive to native rights over the years than any other state.

Most importantly, Native Hawaiians will be able to present a compelling case. The leadership is strong and native people on all the islands are determined to achieve real self-determination, real justice.