Amid much wrangling over the economy, a bipartisan debt panel, and President Obama’s health-care summit, Congress has chosen this moment to tackle . . . Native Hawaiian sovereignty? Sometime soon, perhaps as early as today, the House of Representatives will vote on the Native Hawaiian Government Reorganization Act (NHGRA), which is a modified version of legislation that has been kicking around since 2000 and failed to win a cloture vote in 2006.
Popularly known as the Akaka Bill for its original Senate architect, 85-year-old Hawaii Democrat Daniel Akaka, the NHGRA would effectively designate Native Hawaiians as a sovereign nation comparable to American-Indian tribes, allowing them to form a governing body that would launch negotiations with federal and state officials over land claims, resource rights, jurisdictional matters, taxing authority, and other issues. The list of eligible Native Hawaiian constituents would be determined by a federal commission, using criteria such as (1) ancestral links to the indigenous Polynesians who lived in the Hawaiian archipelago prior to 1893 (when the Hawaiian monarchy was overthrown), (2) lineal ties to the people who qualified as “Native Hawaiians” under the 1921 Hawaiian Homes Commission Act (which relied on a 50 percent blood quantum), and (3) the ability to demonstrate “a significant cultural, social, or civic connection to the Native Hawaiian community.”
But here’s the catch: Once Washington formally recognized the fledgling Native Hawaiian governing entity, that entity would have “inherent power and authority to determine its own membership criteria, to determine its own membership, and to grant, deny, revoke, or qualify membership without regard to whether any person was or was not deemed to be a qualified Native Hawaiian constituent under this Act
” (emphasis added), provided that membership was voluntary and renounceable. In other words, the eligibility guidelines laid out in the NHGRA are essentially meaningless. The Native Hawaiian government would be able to confer membership on whomever it wanted.
Its broader “powers and privileges” would be negotiated with federal and state authorities. During those negotiations, the “governmental, nonbusiness, [and] noncommercial activities” of the Native Hawaiian entity would be exempt from taxation or regulation by the state of Hawaii, and the entity would be shielded from state lawsuits.
You may be wondering why the House elected to consider the NHGRA this week. The reason is simple: Hawaii Democrat Neil Abercrombie, a longtime Akaka Bill advocate, is resigning his seat at the end of February in order to run for governor, and he has been promised that a vote will take place before he departs. The NHGRA enjoys overwhelming support among Democrats and is expected to pass easily. Yet Abercrombie and his colleagues have repeatedly tinkered with the text of the legislation to address the concerns of Hawaii governor Linda Lingle, who has championed earlier iterations of the Akaka Bill but raised objections to the latest version.
The NHGRA traces its roots back to 1993, when Congress marked the centennial of Queen Liliuokalani’s removal by apologizing for America’s involvement in her ouster and acknowledging the “inherent sovereignty” of the Native Hawaiian people. The events surrounding the Hawaiian Kingdom’s 1893 demise remain highly controversial; but suffice to say that the Apology Resolution greatly exaggerated the extent of U.S. culpability. Thirty-four senators voted against it, with Washington Republican Slade Gorton warning that the resolution “divides the citizens of the state of Hawaii — who are of course citizens of the United States — into two distinct groups: Native Hawaiians and all other citizens.”