Since we have been in office, Gov. Linda Lingle and I have strongly supported the Akaka bill, which creates a Native Hawaiian Governing Entity. This legislation has been the subject of thoughtful, extensive debate and negotiation. Last Thursday, at the request of Sen. Daniel K. Akaka, the U.S. Senate Indian Affairs Committee approved and sent to the Senate floor an entirely new Akaka bill. The new bill, unlike any prior version, explicitly makes the Native Hawaiian Governing Entity an Indian tribe for many purposes. The new provisions have never been the subject of a public hearing or public testimony, and there has been no public explanation or discussion of the impact of the new provisions on Hawai'i and our citizens.

Gov. Lingle and I oppose the newly added amendments and believe they should be removed or significantly modified. We played no role in drafting the amendments, and we were not even informed of them prior to last week, though we had been involved (at the request of Sen. Akaka) in the drafting of and negotiations relating to the Akaka bill for seven years.

The Akaka bill that Gov. Lingle and I supported provided for creation of a Native Hawaiian Governing Entity, followed by negotiations between the Governing Entity, the United States and the state of Hawai'i to establish the powers and jurisdiction of the Governing Entity. The new provisions reverse that process, and set up the Native Hawaiian Governing Entity immediately as an Indian tribe.

Let me explain the reasons Gov. Lingle and I strongly oppose these new provisions: First, the change that designates Native Hawaiians as an Indian tribe has not had a public hearing. This major change was sent to the Senate floor without any notice, testimony or explanation. No one has had the opportunity to comment on or testify about this change.

Second, the establishment of an Indian tribe in Hawai'i has immediate and lasting (perhaps permanent) consequences.

Litigation throughout the nation has concerned the power of states and municipalities (like Hawai'i's four counties) to regulate and tax Indian tribes, their lands and their businesses. The new bill explicitly states that it gives the state of Hawai'i no authority to tax or regulate the new tribe, while ambiguously stating that nothing in the bill will itself preempt state authority over Native Hawaiians or their property.

Such a provision would guarantee years, if not decades, of litigation. It could deny the state and counties substantial revenue they now enjoy. It could provide some businesses substantial competitive advantages (especially if free from taxation or regulation to which others are subject). And it could create lands or zones free from state or county environmental, shoreline and development regulation.

The prior version of the Akaka bill explicitly stated:

"Nothing in this Act alters the civil or criminal jurisdiction of the United States or the state of Hawai'i over lands and persons within the state of Hawai'i. The status quo of federal and state jurisdiction can change only as a result of further legislation, if any, enacted after the conclusion, in relevant part, of the negotiation process ."

This important provision has been deleted from the new bill.

Indian tribes and their businesses are also generally immune from lawsuits, even from ordinary tort lawsuits (like auto accident suits) and ordinary breach of contract claims. While Congress has the power to explicitly waive this immunity, the new bill does not do so. And, the new bill deletes a provision expressly preserving the state of Hawai'i's sovereign immunity unless waived in accordance with state law. This virtually guarantees new lawsuits against the state.

These are the kinds of issues that are raised by the new bill. Gov. Lingle and I strongly support the previous version of the Akaka bill, but oppose the new provisions, and we respectfully urge Sen. Akaka to reconsider his action altering the prior bill. At the very least, public hearings should be held on the drastic changes being proposed so their impact on Hawai'i can be fully discussed, debated, and understood. Native Hawaiian recognition is fair and just; leaping into the Indian tribe model of government without any public hearing or public input is not.

Mark Bennett is the attorney general for the state of Hawai'i. He wrote this commentary for The Advertiser.