Akaka Bill delays
underscore the long,
bumpy road ahead

For supporters of the Akaka Bill, the stalling of the proposal in Congress last week was just the latest obstacle in their long fight to win federal recognition for native Hawaiians.

But even if the issues raised by critics are addressed and the bill is passed by Congress and approved by President Bush this year, it would only mark the beginning of another long process toward forming the new, indigenous, self-governing body.

The "Native Hawaiian Government Reorganization Act of 2005," commonly called the Akaka Bill after chief sponsor U.S. Sen. Daniel Akaka, would allow native Hawaiians to organize as a collective body governed by its own constitution and laws.

It outlines a process by which native Hawaiians, after establishing a roll of those wishing to take part in the self-governing body, would select an interim governing commission to draft a constitution and develop criteria for electing officers.

Once formed, the governing entity would negotiate with federal and state governments on issues such as land and resources that it would control, and governmental powers it would have.

How long it would take to get to that point is anyone's guess.

"It's impossible to predict," said Jon Van Dyke, a constitutional law professor at the University of Hawaii's William S. Richardson School of Law. Van Dyke also has assisted the Office of Hawaiian Affairs with legal arguments defending Hawaiians-only programs and services.

"I think it will take a couple of years to sort out the different positions that the Hawaiians themselves have on these issues," Van Dyke added. "Once that happens, there still may be another year or two after that to finalize the documents (constitution) and then the negotiations will obviously be difficult, too."

A vote on the bill was expected last week, but the proposal has been stalled by majority Republicans. Supporters, including Akaka and U.S. Sen. Daniel Inouye, are working with colleagues to address concerns and have a vote before Congress adjourns for the summer.

Rick Castberg, chairman of the political science department at the University of Hawaii-Hilo, said a delay could be a good thing because it would allow for more study of the bill in Washington and in Hawaii.

He noted that the Akaka Bill does not have the support of all native Hawaiians, particularly those who support Hawaiian sovereignty and independence from the United States.

Just the issue of who can take part in the new governing entity could take time, he said.

"There are so many native Hawaiian groups, advocacy groups, that the battle to become part of this governing entity might take months or years," Castberg said. "That could divide native Hawaiians and maybe leave hurt feelings."

Negotiations over what powers and resources could be turned over to the new native Hawaiian governing body could take just as long, if not longer, as forming the entity, attorneys said.

"We might be imagining two to four years to establish the governing entity, and we might be imagining another two to four years of tough negotiation," Van Dyke said.

Forming the new government also could be held up by lawsuits.

Groups that have challenged other Hawaiian preferences contend the Akaka Bill is race-based and violates the U.S. Supreme Court's February 2000 decision in Rice v. Cayetano, which struck down Hawaiians-only voting in elections for the Office of Hawaiian Affairs as racial discrimination.

"The bill would give Hawaiians superiority -- supremacy -- not parity," said H. William Burgess, a Honolulu attorney who has worked on lawsuits challenging preferences for native Hawaiians. "It would give them, one group of people selected only by race, the right to form a new, separate, sovereign government and that's huge."

Supporters argue that native Hawaiians are an indigenous population and should be afforded the same recognition and self-governing rights that Congress has granted American Indians and native Alaskans.

Passage of the Akaka Bill would strengthen the legality of existing programs such as the Department of Hawaiian Homelands and the Office of Hawaiian Affairs.

It also could sway courts into dismissing two pending lawsuits that are challenging Hawaiians-only preferences for the Department of Hawaiian Home Lands and Kamehameha Schools, Van Dyke said.

"If the Akaka Bill is passed, that will reinforce the conclusion that this matter is a political question which the courts should stay out of," Van Dyke said.

While opponents can still challenge any federal legislation, Van Dyke said, "I think it is very unlikely that the courts would declare the Akaka Bill to be unconstitutional because the courts have historically deferred to Congress with regard to actions it takes regarding native peoples."