Akaka Bill - Proposed Provisions

Proposed Provisions

The recognition proposed in the Akaka bill is somewhat similar to the recognition that federally recognized Tribes in the continental 48 states and Alaska have. However, unlike those groups, the current version of the Akaka Bill prohibits Hawaiians from establishing casinos under current laws without banning the establishment of casinos under future negotiations (Section 9a), from participation in programs and services enjoyed by Indians (Section 9f), from being included on the Secretary of the Interior's list of Tribes eligible for federal benefits because of their status as Indians ("Public Law 103-454, 25 U.S.C. 479a, shall not apply."), and from pursuing claims against the United States for past wrongs in court. Also, unlike recognized Tribes in the continental 48 states and Alaska, the Akaka Bill does not require any of the same requirements for tribal recognition. The Bureau of Indian Affairs requires the satisfaction of 7 criteria before recognizing a tribe, none of which are present in the Akaka Bill. They are:

• 83.7a: The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900.
• 83.7b: A predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times to the present.
• 83.7c: The petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present.
• 83.7d: A copy of the group's present governing documents including its membership criteria.
• 83.7e: The petitioner's membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity.
• 83.7f: The membership of the petitioning group is composed primarily of persons who are not members of an acknowledged North American Indian tribe.
• 83.7g: Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the federal relationship.

The current version of the bill provides for negotiations between the United States and the proposed new Hawaiian government. The bill provides for the new Hawaiian government to negotiate for land, rights,and resources, however, the bill does not indicate what the Federal government will be negotiating for, that is what it is Hawaiians have that the Federal government will expect in return at the negotiating table. Typically however, in Tribal/U.S. negotiations, Indians give up their legal and other grievances against the United States in exchange for a portion of disputed land, rights, and resources. (See United States Code Title 25 Chapter 19 for examples.)

Section 2 of findings is based primarily upon the Apology Resolution of 1993.

Section 3 defines "Native Hawaiian" as:

(i) an individual who is 1 of the indigenous, native people of Hawaii and who is a direct lineal descendant of the aboriginal, indigenous, native people who--

(I) resided in the islands that now comprise the State of Hawaii on or before January 1, 1893; and

(II) occupied and exercised sovereignty in the Hawaiian archipelago, including the area that now constitutes the State of Hawaii; or

(ii) an individual who is 1 of the indigenous, native people of Hawaii and who was eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act (42 Stat. 108, chapter 42) or a direct lineal descendant of that individual.

Section 5 establishes the "United States Office for Native Hawaiian Relations". In a revision to a previous version of the Akaka Bill, S.147, the new S.310 no longer requires consultation with the Governor of the State of Hawaii explicitly, but only the "State of Hawaii".

Section 6 establishes the "Native Hawaiian Interagency Coordinating Group" for coordination of various federal agencies and policies, with the specific exclusion of the Department of Defense.

Section 7 establishes a commission of 9 members to certify which adults meet the definition of “Native Hawaiian" established in Section 3(10), and to prepare and maintain a roll of adult "Native Hawaiians" by that definition. Originally requiring specific ancestry to be a member of the commission in S.147, S.310 only requires "(i) not less than 10 years of experience in the study and determination of Native Hawaiian genealogy; and (ii) an ability to read and translate into English documents written in the Hawaiian language." The bill cites the overthrow of the Kingdom of Hawaii, which was multi-racial from its inception, but it does not provide any opportunity for non-Native Hawaiians as defined by the law to participate in the new governing entity.

Once a roll is established, those on the roll will establish a "Native Hawaiian Interim Governing Council", who would establish a permanent form of government. The bill provides that governing documents may, but do not have to be approved by a majority of the people on the roll, and that the form of government chosen "provide for the protection of the civil rights of the citizens of the Native Hawaiian governing entity and all persons affected by the exercise of governmental powers and authorities by the Native Hawaiian governing entity", but does not enumerate if equal protection on the basis of race is one of those civil rights.

Section 8 defers any settlement of issues such as the transfer of lands, the exercise of governmental authority, civil and criminal jurisdiction, and "grievances regarding assertions of historical wrongs committed against Native Hawaiians by the United States or by the State of Hawaii" to future negotiations between the newly organized Native Hawaiian Government and the United States and the State of Hawaii. Also provides:” Nothing in this Act is intended to create or allow to be maintained in any court any potential breach-of-trust actions, land claims, resource-protection or resource-management claims, or similar types of claims brought by or on behalf of Native Hawaiians or the Native Hawaiian governing entity for equitable, monetary, or Administrative Procedure Act-based relief against the United States or the State of Hawaii, whether or not such claims specifically assert an alleged breach of trust, call for an accounting, seek declaratory relief, or seek the recovery of or compensation for lands once held by Native Hawaiians. Also Provides: "Nor shall any preexisting waiver of sovereign immunity (including, but not limited to, waivers set forth in chapter 7 of part I of title 5, United States Code, and sections 1505 and 2409a of title 28, United States Code) be applicable to any such claims. This complete retention or reclaiming of sovereign immunity also applies to every claim that might attempt to rely on this Act for support, without regard to the source of law under which any such claim might be asserted." And Also:” It is the general effect of section 8(c)(2)(B) that any claims that may already have accrued and might be brought against the United States, including any claims of the types specifically referred to in section 8(c)(2)(A), along with both claims of a similar nature and claims arising out of the same nucleus of operative facts as could give rise to claims of the specific types referred to in section 8(c)(2)(A), be rendered nonjusticiable in suits brought by plaintiffs other than the Federal Government."

Section 9 Provides: "Native Hawaiians may not conduct gaming activities" and; "the Secretary (of the Interior of the United States) shall not take land into trust on behalf of individuals or groups claiming to be Native Hawaiian, and; " (c) Real Property Transfers- The Indian Trade and Intercourse Act (25 U.S.C. 177), does not, has never, and will not apply after enactment to lands or lands transfers present, past, or future, in the State of Hawaii. If despite the expression of this intent herein, a court were to construe the Trade and Intercourse Act to apply to lands or land transfers in Hawaii before the date of enactment of this Act, then any transfer of land or natural resources located within the State of Hawaii prior to the date of enactment of this Act, by or on behalf of the Native Hawaiian people, or individual Native Hawaiians, shall be deemed to have been made in accordance with the Indian Trade and Intercourse Act and any other provision of Federal law that specifically applies to transfers of land or natural resources from, by, or on behalf of an Indian tribe, Native Hawaiians, or Native Hawaiian entities." and;” nothing in this Act provides an authorization for eligibility to participate in any Indian program."