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The Honolulu Advertiser
Posted on: Sunday, February 28, 2010

Sovereign immunity key for Hawaiians

By Daniel K. Akaka

I introduced the Native Hawaiian Government Reorganization Act to provide a structured process for all Hawai'i residents to come together to begin to resolve the many issues which remain from the overthrow of Queen Lili'u-okalani, because simply ignoring them is not acceptable.

This long-awaited reconciliation is a step closer to reality this week as the House overwhelmingly approved my bill Tuesday by a bipartisan vote of 245 to 164. Building on the foundation of our first congressional hearings in Hawai'i in 2000, we have come a long way and are now on the doorstep of federally recognizing Native Hawaiians.

Since December, the Hawai'i congressional delegation has worked to expand dialogue between the staff of the delegation, the Obama administration and state Attorney General Mark Bennett. Following this and many follow-up conversations, the state submitted a list of proposed changes. We used many of their suggestions and strengthened the bill with comments received from other stakeholders, including the Native Hawaiian community. These changes were motivated by a desire to make the bill as fair as possible and parallel the legal structure of federal recognition bills for American Indians and Alaska Natives.

We added clarifying language such as "Members of the Native Hawaiian governing entity shall continue to be subject to the civil and criminal jurisdiction of Federal and State courts," and "Nothing in this Act alters or preempts the existing legislative, regulatory, or taxation authority of the State of Hawaii over individuals who are members of the Native Hawaiian governing entity or over property owned by those individuals." These provisions spell out facts which have always been true, but I was happy to add the specific language to help resolve concerns.

However, there were some issues which, despite our best efforts, we simply could not come to agreement on, primarily sovereign immunity. This is a right to which every native government and every state government, including Hawai'i, is entitled. Without this protection, the entity would most certainly face a barrage of lawsuits beginning on Day One, before they have even begun to set up an office. This would put Native Hawaiians on unequal footing with other native peoples, and would create legal problems by deviating from existing federal policies, leading to more litigation. To me, a big part of the value of this bill is that it will lead to negotiations and agreements, not lawsuits.

In the end, though we invested considerable efforts to address the state's concerns, the Hawai'i delegation felt strongly that Native Hawaiians must have the same protections as other native peoples. We are confident that the state's interests will be protected, especially since the entity will need to enter into negotiations with the state to attempt to secure land and other assets.

As outlined in the bill, no private property will be affected. The Native Hawaiian governing entity cannot implement policies impacting nonmembers without their consent. Any agreements on transfers of authority or land will require the approval of the state Legislature. The entity's jurisdiction will be limited to willing members and can only be expanded following negotiations.

With more than 500 federally recognized native governments across the country, many states have long interacted with native governments. This bill is nothing new for our country. It's merely an extension of federal policy. It brings about parity in U.S. treatment of its indigenous people American Indians, Alaska Natives, and Native Hawaiians.

I have greatly appreciated the governor's strong support since she came into office seven years ago. Now that the bill has passed the House, it's so important that all the people of Hawai'i come together to support what we know is our moral responsibility to Hawai'i's original residents. This is simply too important and we know this is a bill the president will sign into law. The negotiations process, which all parties will want to happen quickly, will address any remaining issues.

If we fail to secure federal recognition for Native Hawaiians, legal challenges to Hawaiian programs will continue. The state stands to lose the millions of dollars it receives from the federal government for programs such as Native Hawaiian health and education. We know these programs inject money into our economy and create jobs for Natives and non-Natives alike. It would be unfortunate for all Hawai'i residents if these programs that perpetuate the Native Hawaiian culture, language and traditions disappear.

If we can come together and pass this legislation, all the people of Hawai'i will benefit for generations to come.

U.S. Sen. Daniel K. Akaka of Hawai'i wrote this commentary for The Advertiser.