Kauanui’s Comments on Three Key Points Re: H.R. 2314, The Native Hawaiian Government Reorganization Act of 2009, Passed by the U.S. House Committee on Natural Resources on December 16, 2009 (Introduced by Rep. Abercrombie):
THE NAME OF THE BILL ITSELF PERPETUATES A LIE
Why is the bill called the “Native Hawaiian Government Reorganization Act” instead of “The Native Hawaiian Government Organization Act”? To name this legislation in this way misconstrues the government to government relationship the United States had with the Kingdom, which was distinctly different from the nation-to-nation relationship between the United States and tribal nations within what are now known as the 48 contiguous states. Under the U.S. Constitution, the Hawaiian Kingdom was regarded as a foreign nation, an independent sovereign state. The bill offensively refers to the treaties between the U.S.A. and the Hawaiian Kingdom to try and claim Native Hawaiians as a Native Nation with the special political and legal relationship to the U.S.A. like the relationship the U.S. government asserts in relation to tribal nations. This bill attempts to graft our political genealogy of independence onto a different political lineage with regard to how the U.S.A. treats “Indian tribes” and “foreign nations” differently under U.S. law.
DO PROPONENTS OF THE BILL UNDERSTAND SECTION 8?
This section titled “Reaffirmation of delegation of federal authority, negotiation, claims” reaffirms the U.S. government’s position that it delegates U.S. authority to the State of Hawai`i to address condition of Native Hawaiians under the Hawai`i state admissions act. With regard to negotiations, this section specifies that after the Native Hawaiian governing entity is created, both the United States and the State of Hawaii may enter into negotiations with the Native Hawaiian governing entity. This sets the bill apart from other forms of federal recognition of Native Nations, which do not typically allow the state into any part of the negotiations with the exception of matters related to Indian gaming.
In this bill, the state of Hawai`i is allowed to sit at the table to negotiate over matters including: the transfer of lands, natural resources, and other assets, and the protection of existing rights related to such lands or resources; the exercise of governmental authority over any transferred lands, natural resources, and other assets, including land use; the exercise of civil and criminal jurisdiction; the delegation of governmental powers and authorities to the Native Hawaiian governing entity by the United States and the State of Hawaii; any residual responsibilities of the United States and the State of Hawaii; and grievances regarding assertions of historical wrongs committed against Native Hawaiians by the United States or by the State of Hawaii.
Notice that none of these things are guaranteed in the bill—no land, no jurisdiction, no assets, no governmental power. They are all up for negotiation once representatives of a Native Hawaiian governing entity 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 and under U.S. plenary power, where the U.S.A. asserts total and complete power.
This section of the bill also includes a disclaimer that states that nothing in the Act can create a cause of action against the United States or any other entity or person, nor alter “existing law, including existing case law, regarding obligations on the part of the United States or the State of Hawaii with regard to Native Hawaiians or any Native Hawaiian entity.” Further more, it states that nothing in the bill can create any new obligation to Native Hawaiians under federal law. It also specifically outlines and protects the federal government through sovereign immunity to prevent lawsuits for breach of trust, land claims, resource-protection or resource-management claims, or similar types of claims brought by or on behalf of Native Hawaiians or the Native Hawaiian governing entity.
It also protects the state of Hawai`i by asserting that it “retains its sovereign immunity, unless waived in accord with State law, to any claim, established under any source of law, regarding Native Hawaiians that existed prior to the enactment of this Act.”
DO PROPONENTS OF THE BILL UNDERSTAND SECTION 9?
This section titled “Applicability of Certain Federal Laws,” clarifies that certain laws pertaining to federally recognized Indian tribes would not apply to the Native Hawaiian governing entity. Note that all of these laws that exclude the Native Hawaiian governing entity happen to be laws that greatly benefit tribal nations. The Native Hawaiian governing entity would not be allowed to claim rights under Indian Gaming Regulatory Act. The Native Hawaiian governing entity would not be allowed to have the Secretary of the Interior shall not take land into trust on behalf of the native Hawaiian governing entity. This is important because only land held in trust by the federal government on behalf of Native Nations is allowed to be used by Indian tribes as part of their sovereign land base where they can assert jurisdiction. The Native Hawaiian governing entity would not be allowed to rely on The Indian Trade and Intercourse Act to challenge how the State of Hawaii acquired the Hawaiian Kingdom Crown and Government Lands. No other Native Hawaiian group would be eligible for recognition under the Federal Acknowledgment Process. The Native Hawaiian governing entity would not be eligible for Indian Programs and Services.
Most notably, this section of the bill (e) 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.” It further states that “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 established in section 8(b).” In other words, when the representatives of the Native Hawaiian governing entity sit at the table to negotiate with the federal and state agents, they cannot negotiate for and civil or criminal jurisdiction over any land. In order to do so, there would need to be more legislation passed.