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The Honolulu Advertiser
Posted on: Wednesday, November 15, 2006

Akaka bill backers: Better get that Plan B

By David Shapiro

The Democratic takeover of Congress has renewed hopes for passage of the Akaka bill for Native Hawaiian recognition, but it would be a mistake for those seeking to preserve Hawaiian assets from legal challenge to put all of their eggs back in that basket.

The political climate has changed dramatically since the Akaka bill failed to advance to a vote in the U.S. Senate on June 8 and proponents certainly should take another shot but the measure still faces major obstacles.

Hawaiians would be well-advised to continue working on a Plan B to protect traditional assets in the event that federal political recognition of native rights is not forthcoming.

The Akaka bill was proposed by Sen. Daniel Akaka in 2000 after the U.S. Supreme Court ruled in Rice v. Cayetano that Hawaiian-only elections for the state Office of Hawaiian Affairs unconstitutionally granted special privileges based on race.

The decision opened the door to legal challenges of all Hawaiian-only programs, including Hawaiian Homes and ali'i trusts such as Kamehameha Schools.

The Akaka bill sought to defuse the race issue by recognizing Hawaiians as indigenous Americans with political rights, similar to American Indians and Alaskan Natives.

The legislation was tied up for six years by conservative Republicans opposing entitlements they saw as race-based. They fanned fears that the Akaka bill could restrict the property rights of non-Hawaiians and ultimately lead to Hawai'i secession from the union.

Akaka and fellow Hawai'i Sen. Daniel Inouye finally got Republican leaders to bring the bill to the Senate floor this year by trading their votes on a GOP energy bill, but they fell four votes short of the 60 needed to head off a possible filibuster by opponents.

Akaka and Inouye lined up all 43 Democrats behind allowing the bill to be debated, and Gov. Linda Lingle got 13 Republicans to go along, but the effort was done in by a scathing report issued by the Bush administration at the last minute charging that the bill was "subdividing the American people into discrete subgroups accorded varying degrees of privilege."

While the numbers in Congress have changed in favor of the Democrats, opposition remains strong among conservatives, and it's far from guaranteed that Inouye and Akaka could overcome a Republican filibuster and bring the measure to a successful vote in the Senate or that Hawai'i Reps. Neil Abercrombie and Mazie Hirono could get it through the House.

Even if the Akaka bill does clear both houses of Congress, the margins would likely be too slim to overcome a possible veto by President Bush.

Also working against the measure is the opposition of a vocal segment of Hawaiians who believe the Akaka bill would restrict native rights more than protect them. Thus, the continued need for a Plan B.

Lingle said after the Senate setback that she would work with OHA and Attorney General Mark Bennett to find ways other than federal recognition to protect Native Hawaiian assets, but no details were ever forthcoming.

Inouye said he would introduce a backup bill to protect Hawaiian programs without the complications of Native Hawaiian sovereignty, but again, there have been no details.

OHA stepped up its efforts to form a native Hawaiian government without waiting for federal recognition, but it's far from clear that Hawaiians will accept the leadership of OHA, which has inherent conflicts of interest as a state agency.

What's always seemed backward is that the Akaka bill seeks to create a process for recognizing an undefined sovereign Hawaiian entity that doesn't otherwise exist.

Hawaiians could vastly improve their chances if they approached federal recognition with ideas for a sovereign organization, leadership and agenda already in place.

David Shapiro, a veteran Hawai'i journalist, can be reached by e-mail at dave@volcanicash.net. Read his daily blog at blogs.honoluluadvertiser.com.