---

Akaka Bill merits
support, even with
amendments

---

---

News articles about the newly amended Akaka Bill have mention uncertainty about the outcome of any negotiations of native Hawaiian claims (Star-Bulletin, Sept 17). Some Hawaiians argue that significant legal rights will be waived under the negotiation process set forth in Senate bill 147. Other opponents of the bill argue that S 147 will result in a significant transfer of assets by the state of Hawaii, the United States and the residents of Hawaii to the native Hawaiian Governing Entity (NHGE). At this point, the only thing that is certain is that S 147 permits negotiations to address the injustice to Hawaiians described in the 1993 Apology Resolution and restated in S 147.

The claims are primarily the damage to Hawaiians caused by America's participation in the 1893 overthrow of the Hawaiian kingdom. This damage would include loss of the ceded lands. There are other claims such as unresolved claims that the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands have against the state. The reparations package will probably include return of some ceded lands, money, jurisdiction and entitlements regarding the transferred lands, and perhaps taxation breaks to lessen the cash component. The federal and state governments will likely receive a release of the claims and clear title to the ceded lands that they retain. The settlement package would be determined in negotiations between the NHGE, the state and the federal government.

An often-asked question is why these claims have not been settled earlier. The main reason is lack of standing because the majority of Hawaiians have not been organized in a form of government since 1893. Without a government, U.S. and state officials have no authorized Hawaiian representative to negotiate with. This is why formation of the NHGE is a prerequisite to settlement negotiations. Any delay in formation of the NHGE is simply a delay of reparations and continued exposure to 14th Amendment lawsuits by Kamehameha Schools, OHA and DHHL.

Another frequently asked question is whether these claims can be resolved through litigation. Under the federal and state constitutions, the United States and the state of Hawaii are immune from lawsuits in American courts unless such sovereign immunity has been clearly waived. To date, neither the United States nor the state of Hawaii has waived its sovereign immunity to permit lawsuits to address the overthrow claims.

One might argue that once the NHGE is recognized by the U.S. government it could sue under the limited waiver of sovereign immunity granted to Indian tribes. However, the earlier version of S 147 did not expressly recognize NHGE as an Indian tribe. This exposed it to 14th Amendment Equal Protection challenges. Therefore, a new provision states that the NHGE's special political and legal relationship with the United States will be the type that the nation "has with the several federally recognized Indian tribes."

Because this amendment might be construed as extending to the NHGE the waiver of sovereign immunity now enjoyed by Native Americans, the recent amendments also expressly state that the bill does not waive sovereign immunity in favor of the NHGE. Therefore, any reparations will have to be achieved through negotiations between the NHGE and the U.S. and state governments.

The ultimate question is whether the amended S 147 is better than the status quo, and the answer to that is an overwhelming yes. In fact, the amendments on balance improve S 147 because they significantly strengthen the defense against 14th Amendment challenges, they did not effectively change the analysis with respect to sovereign immunity, and they virtually guarantee that the president will not veto any passage of the bill by the Senate and House because the Justice Department approved of the amendments.

---