How recognition might occur if measure is revived
|||After bill fails, Akaka vows to try again|
Despite the Senate's vote yesterday to halt debate and a vote on the proposed Native Hawaiian Government Reorganization Act, the bill's primary sponsor, U.S. Sen. Daniel K. Akaka, said he would try again to bring the so-called Akaka bill before the Senate.
Many questions about the bill's effects cannot be answered. The measure, if revived and approved at a later date, would likely set in motion the process of federal recognition without pinpointing where that process could lead.
Here is what the bill states it would accomplish and some possible outcomes:
Q: If the bill were to become law, would anything change immediately?
A: No. The measure lays out the procedures through which Native Hawaiians could organize a government that the U.S. would recognize. But most of the details of how this would work is left for future negotiations involving the new government and state and federal officials. It is not clear in the law who would represent non-Hawaiians during those discussions. Oversight would occur once legislation needed to carry out the accord is submitted to state and federal lawmakers.
Q: What would happen first?
A: The law might face a court challenge from people who criticize its provision for a Hawaiian-only voter base setting up what amounts to a constitutional convention. This, critics say, could clash with the U.S. Supreme Court's ruling in the Rice v. Cayetano case. In that decision, the restriction of voting rights according to race was found to be unconstitutional.
Q: Barring legal challenges, how would the formation of a government start?
A: Within 180 days of enactment, the U.S. secretary of the interior would appoint a nine-member commission to prepare a membership roll and certify that everyone enrolled qualifies under the definition of Native Hawaiian. Commission members must themselves be Native Hawaiians and have expertise in Hawaiian genealogy. The commission would have two years to come up with a certified roll; it would exist until the native government is formed and recognized.
Q: Who would be eligible to be listed on the Native Hawaiian membership roll?
A: Anyone who is age 18 or older could be a member if they can prove their descent from someone with Native Hawaiian blood who lived here on or before Jan. 1, 1893, the year that the monarchy was overthrown. A person also could qualify by proving descent from someone eligible for a Hawaiian homestead under a 1921 federal law.
Q: Once the voter list is set, what would happen next?
A: Those on the roll decide how to elect a Native Hawaiian Interim Governing Council. The elected council would hammer out the framework of a new government, including its structure, criteria for citizenship, proposed powers of the government, civil rights of citizens. The Secretary of the Interior would review and certify these documents, resubmitting them to the council if they haven't adequately outlined the workings of the government.
Q: How would recognition finally happen?
A: Officials of the new government would be elected by a majority of Native Hawaiian voters on the roll; the federal government would then recognize this government as a political entity that would represent Hawaiians in settlement negotiations.
Q: What would be settled in negotiations?
A: Among other things, the agreement would settle what lands, natural resources and other assets the Hawaiian government would own. Amendments to state and federal laws needed to bring this all about would be submitted to the appropriate lawmakers.
Q: Does the bill quickly legalize gambling, similar to what exists on some Indian reservations?
A: No. While the bill's initial language did not expressly prohibit gambling, Akaka introduced an amendment last fall stating that gambling would not be allowed on lands under the jurisdiction of the Native Hawaiian government entity unless approved by the state and federal governments.
Other elements of the amendment, intended to appease some concerns expressed by opponents, include:
Q: Could Native Hawaiian citizens qualify for Indian programs and services?
A: No. The bill makes Native Hawaiian citizens eligible only for Native Hawaiian programs and money.
Q: What would be the likely assets of a Hawaiian nation?
A: Most people believe it would be a combination of cash assets, including the Native Hawaiian Trust Fund that the Office of Hawaiian Affairs now manages, and real estate. Some lands — Hawaiian Homes property, Kaho'olawe, some of the ceded lands — are commonly predicted as being included.
Q: Would citizens of the Hawaiian nation pay state or federal taxes?
A: If the status of Native American groups were applied here, Hawaiians would be required to pay federal income tax regardless of federal recognition. However, federally recognized tribal members do not pay state income or property tax if they live and work on reservation or trust lands. Some have suggested that a similar exemption could exist for Hawaiians living on Department of Hawaiian Home Lands leasehold homesteads; others have said there would be no such exemption here.
Some tribes, especially those that have found lucrative revenue in gambling operations, have been assessed "payments in lieu of taxes" to state governments to help pay for services to Indians, especially to tribes that have no such source of income. Such an arrangement could be possible here, to pay for state services to Hawaiians.
Q: Would a non-Hawaiian need permission to enter lands controlled by the Native Hawaiian government?
A: There is legal precedent among federally recognized native nations for access restrictions to be imposed, but this might be impractical where Hawaiian lands exist in smaller parcels.
Q: Membership in a Hawaiian nation would be optional, but would someone have to be a member to benefit from Hawaiian programs?
A: Again, if the Native American model were followed, many programs would not require membership for benefits, but generally one would have to show eligibility for membership through genealogy.