Charles Wilkinson

Distinguished University Professor

Moses Lasky Professor of Law

Boulder, Colorado

 

 

            This memorandum will analyze the revisions recently made to the Akaka Bill. As a general matter, the revisions are few and are technical in nature. From the point of view of Native Hawaiians, the changes, as discussed below, make the bill somewhat stronger.

 

I. PROCESSES UNDER THE PROPOSED LEGISLATION

 

            The objectives of the revised legislation remain the same as in previous versions of the bill. The United States will once again formally recognize Native Hawaiian sovereignty; reestablish a government-to-government relationship with the newly-organized Native Hawaiian government; and reaffirm the federal trust relationship. The bill will also set in motion a process for transferring land and resources to the Native Hawaiian governing entity.

 

            While the revisions make no substantial changes to the complex process of recognition, it may be useful to outline briefly the steps that the current proposed legislation establishes for recognition.

 

            A. Preparation of the membership roll. Under Section 7, a nine-member Commission, composed of Native Hawaiians and appointed by the Secretary of the Interior, will prepare a membership roll for the Native Hawaiian government. This must be done within two years.

 

            B. Election of Interim Governing Council. The adults on the membership roll will then elect an Interim Governing Council, which will exercise limited duties until officers are elected.

 

            C. Adoption of Governing Documents. The Interim Governing Council will submit for an election of the membership a proposed constitution or other set of organic governing documents.

 

            D. Election of Officers. The membership will then elect officers of the Native Hawaiian governing entity. With the certification by the Secretary of the Interior of the organic governing documents and the election of officers, the recognition—or “reaffirmation”—process is complete: as Section 7 (c)(6) provides, at that point “ the political and legal relationship between the United States and the Native Hawaiian governing entity is hereby reaffirmed and the United States extends Federal recognition to the Native Hawaiian governing entity as the representative governing body of the Native Hawaiian people.”

 

            E. Negotiations with the State and the United States. The Native Hawaiian governing entity will then enter into critical three-way negotiations with the state and federal governments over such key issues as the transfer of land and the exercise of civil and criminal jurisdiction. The governing entity will have many other responsibilities, including researching, negotiating, and perhaps litigating claims on behalf of the Native Hawaiian government.

 

II. COMMISSION

 

            One new provision in the recent revisions is the creation of the Commission that will assemble the initial membership roll. In previous versions of the Akaka Bill, these duties would have been performed in conjunction with the Office for Native Hawaiian Relations, a new office within the Department of the Interior. Under the revisions, the membership roll will be a responsibility of this nine-member Commission composed of Native Hawaiians. While this is not a major change, it should be a benefit to Hawaiian Natives—as an aspect of self-determination—that they will be creating the membership roll themselves, rather than having it done by an agency within the Interior Department.

 

III. TIMING OF RECOGNITION AND NEGOTIATIONS WITH THE STATE AND THE UNITED STATES

 

            Questions have arisen concerning the order—which comes first—between (1) recognition and “reaffirmation” of Native Hawaiian sovereignty in Section 7(a)(6) and (2) the far ranging, three-party negotiations over land and governmental authority in Section 8(b).

 

            Recognition and reaffirmation of Native Hawaiian sovereignty is not contingent upon negotiations between the State of Hawaii or the United States. Recognition and reaffirmation comes first, then come the three-party negotiations called for by Section 8(b). Section 7(c)(4), in the provisions relating to recognition and reaffirmation, refers to “the future negotiations to be conducted under the authority of Section 8(b)(1)” (emphasis supplied). Then, Section 8(b)(1), dealing with the negotiations, is even more explicit, stating that the negotiations will take place “upon the reaffirmation of the political and legal relationship between the United States and the native Hawaiian governing entity.” The Senate Committee Report also explains that the negotiations will occur “following the extension of Federal recognition of the Native Hawaiian governing entity.” (Page 74 of revised Committee Report draft).

 

            One point should be emphasized. The Akaka Bill does not create a “global” settlement—indeed, the Akaka Bill does not create any settlement. Instead, the bill requires that the new Hawaiian government be recognized before any negotiations can begin. Then the large issues of land, resources, and jurisdiction will be taken up in the three-party negotiations under Section 8(b). In those negotiations, the Native Hawaiian people will be represented by the new Native Hawaiian governing entity.

 

            Any settlement, therefore, must await the formation and recognition of the Native Hawaiian government. No settlement can occur simply by the passage of the Akaka Bill.

 

IV. LEGAL AUTHORITY OF CONGRESS TO RECOGNIZE NATIVE HAWAIIAN SOVEREIGNTY

 

            Opponents of Hawaiian sovereignty have long argued that Congress lacks constitutional authority to recognize a Native Hawaiian government. In the judgment of most scholars in the field, including myself, Congress plainly has authority under the Indian Commerce Clause of the Constitution to recognize Native Hawaiian sovereignty and otherwise legislate with respect to Native Hawaiians. See, e.g., Felix S. Cohen’s Handbook of federal Indian Law, p. 802-04 (1982 ed.). This is because the Overthrow and subsequent actions affected only the recognition of Hawaiian sovereignty; the sovereignty itself continued to exist, albeit not recognized by the United States. Now a major Supreme Court ruling and the recent revisions to the Akaka Bill have considerably strengthened the position of Hawaiian Natives that Congress has constitutional authority to enact the Akaka Bill.

 

            In April, the Supreme Court handed down its opinion in United States v. Lara, 124 S.Ct. 1628 (2004). The case involved the question of whether tribes have criminal jurisdiction over non-member Indians. In the 1978 Oliphant decision, the Court ruled that tribes lacked criminal jurisdiction over non-Indians. Then, in the 1990 Duro case, the Court extended the Oliphant rule to non-member Indians—in other words, finding that the Navajos could not try a Sioux in a criminal case. Congress, however, promptly overrode the Duro opinion by “recogniz[ing]” and “reaffirm[ing]” the inherent authority of tribes to try non-member Indians.

 

            Lara held that Congress has broad power over Indian affairs under the Constitution and that it can determine the nature of Native governmental powers. The opinion explained that the Constitution authorizes Congress to “enact legislation that both restricts and, in turn, relaxes those restrictions on tribal sovereign authority.” The Court quoted an older case to the effect that “If [by the political branches] those Indians are recognized as a tribe, this court must do the same.” In other language, the Lara opinion (referring to the restoration of the previously terminated Menominee Tribe of Wisconsin) stated that “indeed, Congress has restored previously extinguished tribal status—by re-recognizing a Tribe whose tribal existence it previously had terminated.” The opinion twice referred to the language that Congress used—“recogniz[ing]” and affirm[ing]”—in restoring tribal jurisdiction over non-member Indians.

 

            This broad congressional power to “recognize and affirm” powers of Native governments is most useful to Hawaiian Natives in countering arguments that the Akaka Bill cannot be passed because Hawaiian sovereignty was somehow “erased” by the Overthrow or because Hawaiian Natives are not within Congress’ expansive authority under the Indian Commerce Clause. We should appreciate how closely the Menominee situation, cited with approval in the Lara opinion as just discussed, parallels the Hawaiian situation. The Menominee Tribe of Wisconsin was terminated—legally very similar to the Overthrow—in 1954. Then, in 1973, Congress “restored” federal recognition by “recognizing” and “reaffirming” Menominee sovereignty. This is precisely what Native Hawaiians seek in the Akaka Bill.

 

            Subtle redrafting of the Akaka Bill has also been helpful in bringing the bill within the broad congressional power recognized by Lara. The terms “reaffirm” and “reaffirmation”—similar to the phrase in the statute approved in Lara—have been used in several places in the Akaka Bill. The title of the Akaka Bill has been amended to make it the Native Hawaiian Government Reorganization Act of 2004.” The word “Reorganization” brings the legislation into the main stream of Native American legislation: the Indian Reorganization Act of 1934 authorized tribal constitutions for tribes who had not exercised their sovereignty in terms of constitution-making.

 

            The unusually rich and detailed historical material in the statute and the legislative history also bolster the constitutional standing of Congress to enact this reform legislation. The extensive Congressional findings in Section 2 of the bill and the revised Committee Report emphasize the Kingdom’s original sovereignty, the wrongs acknowledged in the Apology Resolution, and the many federal laws from the Hawaiian Homes Commission Act of 1920 to the numerous modern statutes that Congress has enacted through its trust relationship with the Native Hawaiian community.

 

            This long historical pattern shows the continuity—the direct link—between the Kingdom recognized in the 19^th-century treaties and the sovereign Hawaiian government that Congress will recognize in the Akaka Bill. As the Court in Lara put it, Congress decides “the metes and bounds of tribal autonomy” and the courts should not “second-guess the political branches’ own determinations.”

 

            The attacks on Native sovereignty and congressional authority will doubtless continue, but the Hawaiian position has without question been strengthened and reinforced during the past few months.

 

V. CONCLUSION

 

            Native sovereignty was forcibly overwhelmed by the Overthrow and has been kept inactive on the Islands for more than a century. Hawaiian people have labored for decades and have achieved many things, including the Apology Resolution and the return of Kaho‘olawe. Now recognition of Hawaiian sovereignty can be restored by the Akaka Bill so that self-determination can be revived and thrive. The land and resource base that will result from the three-party negotiations called for by the Akaka Bill will be a treasured legacy for future generations of Hawaiians.

 

            As is well known, the newly-organized Native Hawaiian government will not possess international sovereignty and therefore will not be fully independent. Nonetheless, the domestic sovereignty recognized by the Akaka Bill is truly substantial. In modern times, mainland tribes have used their sovereignty to eliminate control by the Bureau of Indian Affairs and breathe new life into their communities. Hawaiians will do the same—and more. And make no mistake about it: if the political environment ever does become receptive to full independence, then Hawaiians would benefit enormously from having a serious, functional government already in place, complete with a legislature, courts, and an array of administrative agencies effectively serving the needs of Native Hawaiians.

 

            Legislation is never perfect, but the Akaka Bill is a solid vehicle that brings long-delayed justice to Hawaiian people. Much hard work lies ahead to complete the complex procedures of the proposed legislation, but passage of the Akaka Bill marks an historic accomplishment for Native Hawaiians and deserves to be recognized as such.