Understanding both versions of the Akaka bill

By J. Kēhaulani Kauanui

When the U.S. Congress resumes business later this month, the “Akaka bill” will be back on the table in both the House and the Senate. This controversial proposal, officially named The Native Hawaiian Government Reorganization Act, was first introduced by U.S. Senator Daniel Akaka (D-HI) in 2000. Since then it has gone through numerous revisions to appease conservative opposition, especially during George W. Bush’s presidency. But with the Obama administration in the White House, and Democrats holding the majority in Congress, the bill has a strong chance of passage. The Senate Committee on Indian Affairs passed a newly amended version on December 17, 2009, with changes developed by the Department of Justice in conjunction with the state Office of Hawaiian Affairs, The Council for Native Hawaiian Advancement, and the Native Hawaiian Bar Association meant to improve it. The day before, U.S. Congressman Neil Abercrombie had tried to pass the same heavily amended version of H.R.2314 in the House Committee on natural resources, but last minute letters of opposition from Hawaii’s Republican governor, Linda Lingle, prompted him to set aside the proposed revisions (no surprise that he backed off since he had already announced his plans to resign his seat next month to run for governor himself) and the committee passed the unamended version.

Although the House bill could be amended later to conform to the amended Senate version, the fact remains there are two different versions in the works. What difference does it even matter to those who oppose the Akaka Bill and federal recognition for Kanaka Maoli (Indigenous Hawaiians)?

The Senate version potentially gives the Native Hawaiian Governing Entity (NHGE) more power than the House version. In H.R.2314, Section 9, the bill titled “Applicability of Certain Federal Laws,” clarifies that certain laws pertaining to federally recognized Indian tribes would not apply to the NHGE, and they all happen to be the same laws that greatly benefit tribal nations. Perhaps the most important exclusion is that the NHGE would not be allowed to have the Secretary of the Interior take land into trust. This is important because only land held in trust by the federal government on behalf of tribal nations is allowed to be used as part of their sovereign land base where they can assert jurisdiction. Most notably, this section of the bill also states that “Nothing in this Act alters the civil or criminal jurisdiction of the United States or the State of Hawaii over lands and persons within the State of Hawaii.”

The Senate version does not make the same stipulation from the get go. S. 1011 states that the NHGE, the federal government, and the state “may enter into negotiations” that are “designed to lead to an agreement” addressing: land, governmental authority, the exercise of criminal and civil jurisdiction, and more. None of these are guaranteed in the bill-no land, no jurisdiction, no assets, no governmental power. They are all up for grabs (and we know who will grab what) once representatives of a NHGE sit down with the federal and state agents. There is no equal footing here; all negotiations must take place within the framework of U.S. federal law and policy with regard to Indian tribes.

This means that although S. 1011 seems better that H.R 2314 on the face of it, and Abercrombie says he wants to amend H.R. 2314 to make it identical to S. 1011, the outcome could end up looking the same either way, which is why there is substantial Kanaka Maoli opposition to the legislation.

The name of the bill itself perpetuates at lie. It’s called the “Native Hawaiian Government Reorganization Act” instead of “The Native Hawaiian Government Organization Act,” which misconstrues the government to government relationship the United States had with the Hawaiian Kingdom. Under the U.S. Constitution, the Hawaiian Kingdom was regarded as a foreign nation (and not an “Indian Tribe”) because the U.S. recognized the Kingdom as an independent sovereign state.

J. Kēhaulani Kauanui is an associate professor of American Studies and Anthropology at Wesleyan University in Connecticut. She is the author of Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity (Duke University Press, 2008). Kauanui is the producer and host of a public affairs radio program, “Indigenous Politics: From Native New England and Beyond” on WESU, which is syndicated on five Pacifica radio affiliate stations across seven states. All past episodes are archived online: www.indigenouspolitics.com. Kauanui can be reached at: kauanui@hotmail.com. For more information, see: http://jkauanui.faculty.wesleyan.edu/