Politics Rules in Debate over Hawaiian Ethnicity Bill

Published July 1, 2006

A bill that would have created a “Native Hawaiian Government” with special powers for 400,000 persons of native Hawaiian ancestry died in the U.S. Senate on June 8, when the measure came four votes short of the 60 that were needed to keep it alive.

The vote on the Native Hawaiian Government Reorganization Act of 2005 was 56-41 in favor. All 41 votes against the bill were cast by Republicans. Thirteen Republicans and one independent joined 42 Democrats to support the bill.

The U.S. Commission on Civil Rights (USCCR) released a brief on May 4 recommending the U.S Senate reject the Native Hawaiian Government Reorganization Act of 2005, commonly known as the Akaka bill, “or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.”

That recommendation was removed from the USCCR’s final brief, however, under pressure from Hawaii’s legislative delegation and the Hawaii State Advisory Committee to the USCCR.

Sen. Daniel Akaka (D) introduced the bill in 2000, partly in response to the Supreme Court decision in Rice v. Cayetano, which ruled the Office of Hawaiian Affairs (OHA) elections for trustee could not be limited to those with Native Hawaiian ancestry. Akaka has reintroduced the bill every year since.

Land Takeovers Sought

The Akaka bill would lead to the creation of a Native Hawaiian government that would negotiate with the federal and state governments for the turnover of ceded lands, which currently include roads, schools, harbors, and airports, as well as major portions of the land that houses the U.S. military in the state.

When Hawaii was admitted as a state in 1959, all Crown, government, and public lands the Republic of Hawaii ceded to the U.S. government at the time of annexation in 1896 were turned over upon statehood as a state trust. A complete inventory has never been done, but it is estimated to be around 1.8 million acres, about 45 percent of the state. Upon receiving ownership of this land as proposed, the Native Hawaiian government could then impose taxes or lease requirements upon the users of the lands.

A similar circumstance happened last October when the lease for the El Paso Natural Gas Co. pipeline right-of-way (under an agreement between the company and the sovereign Navajo Nation that straddles Arizona and New Mexico) expired and the Navajo Nation demanded $440 million for a 20-year lease. In January El Paso Natural Gas Co. and the Navajo Nation agreed to extend the right-of-way agreement for a year while continuing to negotiate compensation terms.

The state of Hawaii would lose all revenue from any lands handed over to the Native Hawaiian government. Between the loss of revenue and the potential for increased taxes and fees, there is no clear way to estimate the likely fiscal damage to the state’s coffers, said state Sen. Sam Slom (R-Hawaii Kai). The bill also calls for negotiation of all underwater and mineral rights. (Underwater rights that extend for three nautical miles from shore are considered part of the ceded land trust held by the state.) Non-Native Hawaiian fishermen could be assessed substantial fees for the privilege of fishing. That too, would affect state coffers.

‘Native’ Government Proposed

“My intent in drafting this bill is to provide Native Hawaiians with the opportunity to reorganize their governing entity for the purposes of a federally recognized government-to-government relationship with the United States,” Akaka says in an official statement on his Web site. “This is important because it provides parity in the way the federal government deals with the indigenous peoples who inhabited the lands which have become the United States.”

In his May 12 floor speech on behalf of the bill, Akaka stated, “This is about establishing parity for Hawaii’s indigenous peoples in federal policies. This is about clarifying the existing political and legal relationship between Native Hawaiians and the United States.”

Creating “parity” with indigenous Native American and Alaskan tribes has been an argument frequently used to justify the Akaka bill. Critics of the bill, however, point out that Native Hawaiians do not meet the seven criteria for federal recognition of an indigenous tribe. Native Americans and Alaskans have maintained continuous, self-governing entities exclusively governing only their people. Native Hawaiians have had no such exclusive self-governance for more than a century. The Akaka bill seeks to circumvent this problem by legislative decree.

Fiscal Effect Unpredictable

“I think many of us elected officials should be thinking about all the things we don’t know about the Akaka bill, specifically the fiscal implications,” Slom said. “The taxpayers of this state for years have been paying millions of dollars to the Office of Hawaiian Affairs (OHA) as part of an agreement for reimbursement for specified ceded lands. At this point we don’t know what expansion there could be in terms of more land and more money demanded by the proponents of the Akaka bill.

“What makes this doubly frustrating is that every time someone asks a question and wants specific information, the proponents, usually an OHA spokesperson, say, ‘We’ve changed that in the new version of the bill.’ Unfortunately, most of us never see the bill or the backroom agreements that made the alleged changes. This is why I stand firm in saying the taxpayers need a full, open debate and referendum or a plebiscite on the Akaka bill in Hawaii before we rubber-stamp it.”

State Residents Oppose Bill

The Grassroot Institute of Hawaii, a nonpartisan public policy think tank, commissioned a statewide telephone survey in early May 2006 regarding the proposed bill. Sixty-seven percent of state residents who were surveyed oppose the Akaka bill. In addition, 70 percent support the “Let Us Vote” idea that demands Hawaii’s voters have a Yes or No vote on the Akaka bill before it becomes law.

Don Newman ([email protected]) is senior policy analyst at the Grassroot Institute of Hawaii.