S.344, in and of itself, does not protect Native Hawaiian programs. However, S.344 does afford Native Hawaiians some control over their destiny by providing the Native Hawaiian governing entity the ability to work directly with the federal government to protect programs that impact Native Hawaiians.

In 1996, the U.S. Supreme Court decision in Rice v. Cayetano declared the Office of Hawaiian Affairs’ elections unconstitutional based on the 15th Amendment, which says that state-sponsored elections must not be based on race, setting the precedent for future court challenges on Native Hawaiian programs and entitlements.

The Arakaki et. al v. State of Hawai'i case currently challenges the very existence of OHA and the Department of Hawaiian Home Lands (DHHL) on the grounds that Native Hawaiian entitlements are race-based and thus discriminatory against non-Hawaiian taxpayers. Without the security that a federally recognized Native Hawaiian governing entity can provide, the future of OHA, DHHL and other Native Hawaiian programs hangs in the balance.

The Native Hawaiian federal recognition bill, also known as the Akaka/Stevens bill or S. 344, raises many questions regarding the future of the Native Hawaiian people. However, not all of these questions can be answered through the bill itself. To better understand the types of issues federal recognition may address, you have to understand what the legislation really says.

First, through S.344, Congress finds that Native Hawaiians are the indigenous people of the Hawaiian archipelago. By recognizing Native Hawaiians as the indigenous people of the Hawaiian Islands, the United States recognizes Native Hawaiians as a political entity rather than an entity based on race. According to the Congress, this provides Native Hawaiians a special political and legal relationship with the United States similar to the government-to-government relationship between the federal government and American Indians and Alaska Natives.

The bill articulates that Native Hawaiians have an inherent right of self-determination and have the right to reorganize a Native Hawaiian governing entity. S.344 authorizes the process for the establishment and federal recognition of a Native Hawaiian governing entity for the purpose of continuing a government-to-government relationship.

The federal recognition bill also authorizes a roll for adult Native Hawaiians who wish to participate in the reorganization of a Native Hawaiian government. Native Hawaiians who wish to participate in the roll must be at least18 years old and provide documentation that they are the direct lineal descendants of an indigenous person of the Hawaiian Islands. According to S.344, there are two ways a person can prove lineal descent. A person eligible for the roll must show that they are a direct lineal descendent of (1) an indigenous person who resided in the Hawaiian Islands, on or before Jan. 1, 1893 or (2) an indigenous person who was eligible for programs under the Hawaiian Homes Commission Act in 1921.

If the Akaka/Stevens bill is enacted and the Hawaiian people choose to gain federal recognition, nation-within-a-nation, the Native Hawaiian governing entity would then work directly with the federal government and the State of Hawai’i to protect Native Hawaiian lands and programs that affect Native Hawaiians.

While the federal recognition bill authorizes the formation of a Native Hawaiian governing entity, the bill itself does not prescribe the form of government this entity will become. S.344 creates the process for the establishment of the Native Hawaiian governing entity and a process for federal recognition. The Native Hawaiian people may exercise their right to self-determination by selecting another form of government including free association or total independence.