OHA Statement Regarding Revisions to the Akaka Bill

A lot of misinformation and false accusations are circulating on the internet and elsewhere regarding the recent revisions to the Akaka Bill. We wish to set the record straight on some of that misinformation.

The April 20 “Action Alert” states “all historic claims will not be allowed” under Section 8(c)(2) of the revised Akaka Bill. This is not necessarily true. Section 8(c)(2) affirmatively states a particular jurisdiction that the U.S. District Court in Hawaiÿi will have:

original jurisdiction over any existing claim against the U.S. arising under Federal law existing on the date of enactment of this Act and relating to the legal and political relationship between the U.S. and the Native Hawaiian governing entity.

This affirmative statement of jurisdiction does not necessarily negate jurisdiction over historic or other claims, in this or other forums. It does raise questions of whether “original” jurisdiction is the equivalent of “exclusive” jurisdiction. It leaves unaddressed claims under international law or in international arenas. This section needs to be reviewed in combination with rules of statutory construction and other possible applicable legal standards before making conclusive remarks.

The Action Alert states that the revised Akaka Bill requires:

a global settlement for Hawaiian lands and revenues, ... and that the U.S. congress and the State Legislature must pass laws approving the global settlement before the [Hawaiian] nation is recognized.

The Action Alert cites Sec. 8(b)(13) and Sec. 7(4)(a) in support of this statement; however, there are no such section numbers. That makes it difficult to directly address the concerns that are raised. If the Action Alert intended to cite sections 7(c)(4), 7(c)(6), and 8(b), those sections do not make a bright line statement as claimed in the Action Alert. Again, these sections require careful legal analysis.

The Action Alert goes on to state that press statements indicate the “deal was worked on by the State (... OHA).” However, OHA is not the State of Hawaiÿi. Although OHA is a quasi-state agency, its structure and mission are unique and removed from the State of Hawaiÿi. Its mission and statutory obligation is to work toward the betterment of its beneficiaries, Native Hawaiians. As a trust entity, its trustees are obligated under U.S. law to work only in the interest of beneficiaries. Therefore, its obligation is not to the State of Hawaiÿi but to the Native Hawaiian people.

Moreover, OHA did not engage in any “deal” to bring about these changes. The negotiations between our Congressional delegation, the Republican leadership, and the Department of Interior were held outside of OHA’s purview and were presented to OHA in final form just as they were presented to the general community in final form.

Lastly, the Action Alert also states that OHA has spent over $4 million dollars in illegal lobbying for the Akaka Bill. OHA has not spent anywhere near $4 million in lobbying for the Akaka Bill. OHA has spent something less than $1 million for lobbying for the Akaka Bill. The exact amount is being determined right now.

It is important to note that OHA does not believe that lobbying for the Akaka Bill is an illegal use of OHA funds. In fact, OHA trustees feel they have a fiduciary duty to seek passage of the Akaka Bill in order to preserve federal recognition as an option should the Hawaiian people later decide that they want federal recognition as a form of government.

To prevent any misunderstanding, let me clearly state: OHA trustees are not dictating federal recognition as the form of government for the Native Hawaiian people. They are merely seeking to keep federal recognition available as an option. The Native Hawaiian people may choose or not choose federal recognition when the time comes to select a form of government.

That having been said, OHA trustees do have concerns with some of the recent revisions to the Akaka Bill. Because of the sensitive nature of any law which limits our ability as Native Hawaiians to seek relief which we are entitled to, OHA is soliciting the input of national legal experts in the field of American Indian law and indigenous rights. We expect to have a legal opinion on the impact of Section 8 within the next few weeks. Please check both www.oha.org and www.nativehawaiians.com for this critical analysis.

We agree there are two significant changes being offered in this new version of the Akaka Bill:

• Section 7 calls for the creation of a nine-member Commission appointed by the Secretary of the Interior. All members of the Commission must be Native Hawaiian.

• Section 8 establishes a 20-year limit during which the Native Hawaiian governing entity may bring claims to the United States District Court in the District of Hawaiÿi. It should be noted that this 20-year statute of limitation is considered by experts in the field of Indian Law to be extremely generous. In other federal recognition legislation, the statute of limitations has ranged from one year to six years.

It is also important to note that the claims referred to in the Akaka Bill are claims made by the sovereign Native Hawaiian governing entity to the sovereign government of the United States.

Until the expert legal analysis is complete, we urge all Hawaiians to engage in mature, thoughtful, meaningful, productive discussion. OHA does not have a secret agenda. Our only objective is to help the Native Hawaiian community engage in mature, thoughtful, meaningful, productive discussion. We expect there will be disagreement. But if we can keep the end goal of self-determination in mind, it will be easier to work together as we all seek the best options for the Native Hawaiian people.

You may wish to review a “side-by-side” comparison of the prior version of the Akaka Bill (amended June 2003) with this most recent revision. It is available at www.nativehawaiians.com.

If you have questions or would like to discuss any of this further, please contact our Governance staff at 594-1921 or monab@oha.org.

Mahalo,

Clyde W. Nämuÿo

Administrator