Anatomy of
the Akaka Bill

The Akaka Bill defines a process in which the federal government, through the Department of the Interior, would recognize a self-governing native Hawaiian body. The entire text of the bill can be found at U.S. Sen. Daniel Akaka's Web site: akaka.senate.gov/akakabill-b.html. Here's a summary, by section, of what bill S. 147 says, and how it sets up the process:

I

Short title: This section cites the name of the legislation as the Native Hawaiian Government Reorganization Act of 2005.

II

Findings: This section provides background information -- facts that Congress deems to be true -- and establishes the reasons why the bill is being introduced.

It states that Congress finds native Hawaiians to be an indigenous population, and that "the United States has a special political and legal responsibility to promote the welfare of the native people of the United States, including native Hawaiians."

The section defines the land set aside under the 1920 Hawaiian Homes Commission Act as 203,500 acres, noting that about 6,800 native Hawaiian families reside on Hawaiian Home Lands, with an additional 18,000 on a waiting list.

It also defines "ceded lands" as those that were placed in a public trust as part of the compact with the United States admitting Hawaii to the union in 1959. While the public trust "consists of lands, including submerged lands, natural resources and the revenues derived from those lands," the bill also declares that the lands included in the trust "have never been completely inventoried or segregated."

Finally, this section states what the act does, which is provide a process under federal law by which the native Hawaiian people may form their own "distinct, indigenous, native community" to govern as they see fit.

III

Definitions: This section defines terminology used in the bill, including "aboriginal, indigenous, native people," "Indian program or service" and "Indian tribe."

The key portion of this section establishes the definition that would be used for determining who initially can be part of a new self-governing native Hawaiian body.

It defines native Hawaiian as an individual who is one of the indigenous, native people of Hawaii and was either:

The bill does not use the term "native Hawaiian nation," and refers to the new governmental body as the "native Hawaiian governing entity" throughout the bill.

IV

United States Policy and Purpose: This section repeats and summarizes the background information laid out in Section 2, and presents it as the policy and purpose for establishing the new self-governing native Hawaiian community.

The policy states, among other things, that native Hawaiians have an "inherent right" to govern their own affairs and that Congress has the authority to enact legislation to address conditions of native Hawaiians and already has done so through various acts including the Hawaiian Homes Commission Act of 1920 and the admission of Hawaii to the Union in 1959.

V

United States Office for Native Hawaiian Relations: This section establishes and defines the role of the U.S. Office for Native Hawaiian Relations within the Department of the Interior. This office already has been established and funded by Congress through legislation passed in 2004.

The office, which is required to provide annual reports to Congress, is to act as a liaison between the new self-governing native Hawaiian body and the federal and state governments.

VI

Native Hawaiian Interagency Coordinating Group: This section establishes a group that would be responsible for regularly bringing together the different federal agencies that administer programs and services for native Hawaiians. Agencies would be required to coordinate programs and consult with the native Hawaiian governing body on issues that affect the members.

The Interagency Coordinating Group would be composed of officials, appointed by the president, from each federal agency that administers programs or implements policies that affect native Hawaiians and from the Office for Native Hawaiian Relations. The Department of the Interior would be the lead agency.

VII

Process for the Reorganization of the Native Hawaiian Governing Entity and the Reaffirmation of the Political and Legal Relationship Between the United States and the Native Hawaiian Governing Entity: This section outlines the process for forming the new self-governing native Hawaiian body.

It requires the formation of a nine-member commission composed of native Hawaiians with "expertise in the determination of native Hawaiian ancestry and lineal descendancy."

The commission would be charged with developing and maintaining the roll, or list, of those who wish to participate in the native Hawaiian government. Participation is limited to adult members of the native Hawaiian community whose ancestry is certified by the commission. The bill makes no reference to minors who claim to be of native Hawaiian descent, although the issue could be addressed as the governing body moves forward.

The commission is charged with setting up the process for members to submit documentation. This section also sets up an appeals process for those who believe they should be included on the roll but whose applications are rejected.

After it is compiled, the roll then must be submitted to the Secretary of the Interior for approval and publication.

Once approved by the secretary, those on the roll then must develop criteria and elect candidates to serve on a native Hawaiian Interim Governing Council. The council would be charged with developing "organic governing documents" (a constitution) that could then be put before the members for a ratification vote.

The constitution then goes to the Secretary of the Interior, who would review the documents to ensure that they meet basic criteria on issues such as civil rights of the membership and the relationship that the new entity would have with the federal government. The secretary has the power to reject the documents and seek amendments to bring them into compliance.

After certification, the federal government would then recognize the new self-governing native Hawaiian body and the Interim Governing Council may then hold elections for officers of the new entity.

VIII

Reaffirmation of Delegation of Federal Authority; Negotiations; Claims: This is widely considered the most important section of the bill because it defines what powers and resources could be turned over to the new native Hawaiian body through negotiations with the federal and state governments.

This section authorizes the federal government and the state of Hawaii to enter into negotiations with the new self-governing native Hawaiian body to address issues including:

As the government bodies reach agreement on these issues, they may submit recommendations to the U.S. Congress and/or Hawaii State Legislature for proposed legislation to implement those agreements.

For example, if all three governing bodies agree that prosecution of adults on the native Hawaiian roll who commit non-violent crimes should be handled by native Hawaiians, then legislation would be introduced to allow for that. This would be similar to how many native American tribes have jurisdiction over crimes committed on reservations.

This section also states that the act does not settle claims against the United States and sets a 20-year limit, from the time the bill becomes law, for the filing of any claim against the federal government related to the native Hawaiian people.

IX

Applicability of Certain Federal Laws: This section states that the act does not authorize the new native Hawaiian entity to conduct gaming or gambling activities that are allowed by American Indian tribes.

It also states that the new native Hawaiian entity and its members would only be allowed to participate in Indian programs and services that they currently qualify for under federal law.

X

Severability: This section states that if a court ruling or amendment renders any section of the bill invalid, the rest of the bill is to be enforced.

XI

Authorization of Appropriations: This section authorizes that Congress shall appropriate federal funds that are needed to carry out the act.

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Illegal overthrow
perpetrated land thefts

A critical issue for native Hawaiians seeking justice from the United States centers on land once held communally but controlled by Hawaii's chiefs and later passed into Western hands.

Both the Akaka Bill and reports to the U.S. Senate Committee on Indian Affairs describe the history of land exchanges as part of the explanation of why the bill is needed to right the wrongs of the past. The following account is based on those descriptions.

During the Great Mahele of 1848, King Kamehameha III dismantled the communal land tenure system by dividing the islands four million acres. The king set aside 1.5 million acres, known as "government lands" for the common people, or "maka'ainana," and island chiefs. He retained another million acres, known as "crown lands" for himself and his heirs. The remaining 1.5 million acres were conveyed to the main chiefs. The bulk of these original government and crown lands are known as "the ceded lands" today.

Some historians say that one intent of the Mahele was that the maka'ainana would make claims for the lands their ancestors had cultivated. But in the end, only about 28,600 acres went to 8,000 farmers.

By 1850, laws were passed allowing non-Hawaiians to buy land fee simple and they began buying large tracts.

In 1893, American merchants overthrew the kingdom and the U.S. Minister to Hawaii, John L. Stevens, ordered the U.S. Marines to position themselves near Iolani Palace. On Jan. 17, 1893, Queen Liliuokalani, acting under protest, relinquished her governing authority to the United States.

People behind the coup formed the Republic of Hawaii which sought annexation to the United States and claimed title to the government and crown lands without compensating anyone. President Grover Cleveland refused to recognize the new republic and denounced it. Cleveland condemned the overthrow as an "act of war, committed without the authority of Congress."

In 1898, the Republic was annexed to the United States and 1.8 million acres of crown, government and public lands were ceded to the United States without the consent or compensation of native Hawaiians.

In 1900, the Territory of Hawaii was established and the ceded lands were put "in the possession, use and control of the government of the Territory of Hawaii until otherwise provided for by Congress."

In 1921, Congress passed the Hawaiian Homes Act, placing about 203,500 acres ceded to the United States in 1898 under the jurisdiction of the Hawaiian Homes Commission, an arm of the Territorial Government, to provide homestead lots to native Hawaiians with 50 percent or more Hawaiian blood. The act was intended to make amends for short changing native Hawaiians in prior land distributions.

Today, about 6,800 native Hawaiian families live on homesteads and an additional 18,000 families are on waiting lists.

As a condition of statehood in 1959, the state of Hawaii adopted the Hawaiian Homes Commission Act and the management of 203,500 acres set aside under the 1921 act. The state also assumed the federal responsibility for the bulk of the ceded lands, which were conveyed to a public trust.

On Nov. 23, 1993, President Bill Clinton signed the "Apology Resolution" which apologized for the federal government's role in the 1893 overthrow.

Six years later, the departments of Justice and the Interior held meetings on several islands to hear what native Hawaiians felt should be the necessary steps to reconciliation between the United States and native Hawaiians.

A report on those hearings, recommended that "native Hawaiian people should have self-determination over their own affairs within the framework of Federal law, as do Native American tribes."

The Akaka Bill was written as the next step in that process.