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The Honolulu Advertiser
Posted on: Tuesday, September 4, 2007

COMMENTARY
Too early to determine Akaka bill impact

By Moani Crowell, Scott Hovey Jr., Derek Kauanoe, Greg Schlais and Anosh Yaqoob

As members of the Native American Moot Court Team at the William S. Richardson School of Law, we wish to comment on some of the claims that have been made about the Akaka bill. We are neither advocating for or against the Akaka bill. However, based on our experience and education, we believe it is far too early to make certain assertions against the Akaka bill and its potential legal consequences.

The Akaka bill is undoubtedly important proposed legislation that will have widespread effect in the Hawaiian Islands. Residents understandably have concerns. In providing responses to valid concerns, some in our community have replied with comments that either cannot be made legitimately at this time, or come from sources inadequately familiar with federal Indian law and policy.

There have been many assertions in the media about the Akaka bill through comparisons of settlement agreements with federally recognized Indian tribes, but usually looking only at one type of settlement.

It is important to clarify that federal Indian law is one of the most complex, and often confusing, areas of the law for practitioners, policymakers, students and professors. The law comprises thousands of overlapping statutes, treaties, executive orders, court precedents and administrative regulations.

Federally recognized Indian tribes do not compose a single monolithic entity to which we can compare Native Hawaiians. There are more than 500 federally recognized tribes each with its own relationship with the federal government.

Some relationships are based on treaties, while others are based on legislation. Moreover, legislation for one tribe will not necessarily be the same as legislation for another tribe.

Legally unsupportable conclusions that have been made thus far include suggestions that non-Native Hawaiians will be absolutely excluded by a Native Hawaiian governing entity, that Native Hawaiians will be immune from criminal and civil laws, and that Native Hawaiians will not have to pay taxes.

These claims have been made based on experiences with Native Americans. Comparisons to Native Americans and federal Indian law are made because this subject area, within the context of U.S. domestic law, is the one most applicable to our situation. While other legal regimes (i.e. international law) may be applicable, within the context of U.S. domestic law, federal Indian law is most applicable to our situation here at home.

The language of the Akaka bill currently allows only for Native Hawaiian participation in the early stages of self-governance under U.S. law, but the bill does not prevent future inclusion of non-Native Hawaiians as citizens of a federally recognized Hawaiian government.

If we want to compare this situation to Native Americans, precedents support both sides of the issue, depending on the tribe. There are precedents of Indian tribes including non-Indian people as citizens or tribal members. Likewise, there are tribes that have excluded "non-tribal" individuals from complete membership.

Further, nowhere in the text of the Akaka bill can language be found exempting Native Hawaiians from the authority of the U.S. Constitution or the civil and criminal laws of the state and federal governments. The bill's text itself actually provides that "nothing in this Act alters the civil or criminal jurisdiction of the United States or the State of Hawai'i."

A review of legislation between federally recognized tribes and the federal and state governments shows that a number of legislative acts have provided state governments with varying measures of jurisdiction over American Indian reservations, depending on the specific kinds of offenses at issue.

Additionally, there is a misconception that as a result of the Akaka bill, Native Hawaiians will not have to pay taxes like all other Hawai'i residents. Nothing in the bill provides immunity from taxation for Native Hawaiians. Again, a review of legislation with federally recognized tribes shows that, depending on the terms of approved agreements, many tribes do pay taxes.

Language in some agreements specifies that payments will be paid in lieu of taxes. In other words, whether we call them taxes or payments, tribes are paying for governmental services at different levels of government. Considering how current tax laws may be applied to members of a federally recognized Native Hawaiian entity, until negotiations actually occur, it is too early to assert what the outcome will be.

As a moot court team that has achieved success in competition against other law schools in the field of Federal Indian law, we are simply stating that many public assertions being made about the Akaka bill are misdirected at legislation that only opens dialogue on these issues, and does not actually constitute a settlement.

The writers are returning members to the Native American Moot Court Team at the University of Hawai'i-Manoa. They wrote this commentary for The Advertiser.