Akaka Bill
prospects brighter

Supporters say a list of Bush
administration concerns about the
measure points the way to passage

A U.S. Justice Department letter citing concerns about the Hawaiian recognition bill before the Senate is actually a good sign because it does not oppose it or say it is unconstitutional, supporters say.

Assistant U.S. Attorney General William Moschella sent the letter yesterday to U.S. Sen. John McCain, chairman of the Senate Indian Affairs Committee.

Moschella, also the Justice Department Legislative Affairs director, pointed out four concerns with the so-called Akaka Bill, but he wrote that they "can and should be addressed and resolved by change to the text of the bill."

"The Administration stands ready to work with Congress on specific language to address and resolve each policy issue discussed," the letter said.

Hawaii Attorney General Mark Bennett said he was delighted by the letter. "It is an extraordinary letter and is an extremely positive development," he said. He agreed that the Bush administration's concerns can be addressed with amendments to the bill, which would grant native Hawaiians a form of self-government that would be given federal recognition.

That the White House did not say the bill was so flawed that it should not pass came as a relief to supporters.

"They did not express an opinion that the bill was unconstitutional," Bennett explained.

Haunani Apoliona, chairwoman of the Office of Hawaii Affairs board of trustees, agreed: "What is not said, says a lot."

She said the bill is on track to passage. "It is as close as it has ever been," Apoliona said.

U.S. Sen. Daniel Akaka added his encouragement.

"I welcome the Administration's suggestions and am working with Administration officials to address the issues expressed in their letter. I am confident we can reach common ground on the identified issues," Akaka said in an e-mailed response from Washington.

Gov. Linda Lingle, who has twice gone to Washington to lobby for the bill, said she thinks amendments can meet any Bush administration concerns.

"The fact that the Justice Department's concerns do not go to the core of the bill is a positive sign regarding its passage," Lingle said.

She will again travel to Washington, D.C., next week to lobby for both the bill and for keeping the Pearl Harbor Naval Shipyard open.

Lingle said she will meet with co-sponsors of the Akaka Bill, other key senators who support it and those who are undecided, to answer questions and provide more information about the bill and its significance to Hawaii.

Supporters are expecting the Senate to start debate on the Akaka Bill (SB 147) early next week. The Justice Department letter is encouraging them to think the bill could pass in a vote as early as Wednesday.

"I am even more optimistic about our efforts to enact this legislation," Akaka said.

The one issue the bill cannot answer is the ultimate constitutional power of Congress to "treat native Hawaiians as it does Indian tribes," Moschella said in his letter.

Bennett agreed that the Rice v. Cayetano U.S. Supreme Court decision, which opened voting in OHA elections to non-Hawaiians, did not address the issue.

"I believe the Supreme Court would now find that Congress can constitutionally recognize native Hawaiians under the 'Indian Commerce Clause' of the Constitution," Bennett said. But, he added, "the Supreme Court has left this precise question unanswered."

Moschella noted that in the Rice decision the court looked at whether native Hawaiians are eligible for tribal status, and could only say, "it is a matter of some dispute and of considerable moment and difficulty."

Main objections Four key issues cited by the U.S. Justice Department in a letter to Congress relate to: » Adding language regarding potential claims, including a limitations period shorter than the 20-year period now in the bill. » Amending the language to make it clear that the bill does not interfere with the operations of the U.S. military in Hawaii or affect military readiness. » Amending the bill to clarify whether the federal government, state of Hawaii or the native Hawaiian governing entity will have jurisdiction to enforce criminal laws on native Hawaiian lands. » Clarifying that the native Hawaiian governing entity will not be able to engage in gaming activities.

Critic wants to
require referendum

A strong opponent of the Akaka Bill says all Hawaii citizens should have the right to say whether native Hawaiians are recognized by the federal government in much the same way as American Indians.

Sen. Jon Kyl, R-Ariz., plans to introduce an amendment requiring a statewide referendum before the U.S. government could recognize native Hawaiians as a separate entity, the Stephens Media Group's Washington bureau reported yesterday.

The referendum is among several amendments Kyl said he plans to propose when the bill is expected to come up early next week. He declined to discuss the other proposed amendments.

Kyl had put a hold on the bill earlier, preventing it from going to the Senate floor for a vote, and said he will urge senators to vote against the bill.

However, Hawaii's two Democratic senators -- Daniel Akaka, who introduced the bill, and Daniel Inouye -- say they believe they have the necessary votes for it to pass.

The bill, which cleared the Senate's Indian Affairs committee in March, is tentatively set for debate Monday night and Tuesday, with a vote on Wednesday "if all goes well," according to Akaka spokeswoman Donalyn Dela Cruz.

Akaka said Kyl's amendment would not be necessary because the recognition process already provides for a referendum of Hawaii voters.

"Specifically, before any of the negotiations can be implemented, state and federal laws have to be amended, and most likely the state Constitution will have to be amended," Akaka said.

This would give the state the opportunity for a referendum, he said.

Honolulu attorney H. William Burgess, an opponent of the bill, supports Kyl's proposal.

"I think it's an excellent idea," he said. "After all, this bill would allow state officials to surrender jurisdiction of part of Hawaii without the consent of the people of Hawaii."