Akaka Bill amendment analysis:

Amended bill strengthens protection against race-based lawsuits

By William Meheula

William Meheula is a Honolulu attorney who has litigated a wide variety of Hawaiian issues.

News articles about the Akaka Bill (S 147) frequently mention uncertainty about the potential outcome of any negotiations of Native Hawaiians claims. Some Native Hawaiians argue that significant legal rights will be waived under the negotiation process set forth in S. 147. Other opponents of the bill argue that S. 147 will result in a significant transfer of assets by the State of Hawaii, the United States and the residents of Hawaii to the Native Hawaiian Governing Entity (NHGE). At this point, the only thing that is certain is that S. 147 permits negotiations to address the injustice to Native Hawaiians described in the 1993 Apology Resolution and restated in S 147.

The claims are primarily the damage to Native Hawaiians caused by America’s participation in the 1893 illegal overthrow of the Hawaiian Kingdom. This damage would include loss of the ceded lands. There are other claims such as unresolved claims that OHA and DHHL have against the state. The reparations package will probably include return of some ceded lands, money, jurisdiction and entitlements regarding the transferred lands, and perhaps taxation breaks to lessen the cash component. The U.S. and the state will likely receive a release of the claims and clear title to the ceded lands that they retain. The settlement package would be determined in negotiations between the NHGE, the State and the U.S.

An often-asked question is why these claims have not been settled earlier. The main reason is lack of standing, because the majority of the Native Hawaiians have not been organized in a form of government since the 1893 overthrow of the Hawaiian Kingdom. Without a government, the U.S. and state have no authorized Native Hawaiian representative to negotiate with. For example, who would control the reparations and who could effectively release the U.S. and the state in the settlement agreement? This is why formation of the NHGE is a prerequisite to settlement negotiations. Any delay in formation of the NHGE is simply a delay of reparations for Native Hawaiians and continued exposure to race-based lawsuits against OHA, DHHL and Kamehameha Schools.

Another frequently asked question is whether these claims can be resolved through litigation. Under the U.S. and the state constitutions, the U.S. and the state are immune from lawsuits in American courts unless such sovereign immunity has been clearly waived. To date, neither the U.S. nor the state has waived its sovereign immunity to permit lawsuits to address the overthrow claims. The earlier version of S. 147 (before the 9/16/05 amendments) discussed a 20-year statute of limitations but it did not include a waiver of sovereign immunity. Therefore, even before the amendments, the NHGE would likely be barred from litigating the overthrow claim against the U.S. and the State.

One may argue that once the NHGE is recognized by the U.S. that it could sue under the limited waiver of sovereign immunity granted to Indian tribes. However, the earlier version of S. 147 did not expressly recognize NHGE as an Indian tribe. This defect in the earlier version of S. 147 exposed it to 14th Amendment equal-protection challenges. Therefore, a new provision states that the NHGE’s special political and legal relationship with the U.S. will be the type that the U.S. “has with the several federally recognized Indian tribes.” This language significantly improves the probability of defeating any 14th Amendment lawsuit.

However, because this amendment might be construed as extending to the NHGE the waiver of sovereign immunity now enjoyed by Native Americans, the recent amendments also expressly state that the bill does not waive sovereign immunity in favor of the NHGE. Therefore, if there is going to be any reparations, they will have to be achieved through negotiations between the NHGE, the U.S. and the State.

The reality is that Native Hawaiians had no role in the amendments because there is no NHGE. Therefore, the ultimate question is whether the amended S. 147 is better than the status quo and the answer to that is overwhelming yes. In fact, the amendments on balance improve S. 147 because they significantly strengthen the defense against 14th Amendment challenges, they did not effectively change the analysis with respect to sovereign immunity, and they virtually guarantee that the president will not veto any passage of the bill by the Senate and House because the Justice Department approved of the amendments. Some may argue that S. 147 should include a waiver of sovereign immunity. However, at this point in history, the U.S. does not favor granting the NHGE that right, and thus the next best realistic alternative is to negotiate the claims.