The U.S. Commission on Civil Rights held a hearing recently on the Native Hawaiian Government Reorganization Act (S.147), also known as the Akaka bill. Some witnesses testified concerning the historical bases for the bill. Others testified about the bill’s constitutionality. And others opined about the bill’s operational effect.
The testimony was detailed and informative. By the time the hearing drew to a close most of the technical aspects of the act had been covered. But something was missing. Testimony regarding the act’s technicalities, no matter how erudite, seemed to skirt the most important matters. So near the conclusion of the hearing I posed two simple questions that I thought went to the guts of the issue.
The first question was “What precipitated the legislation?” Here we are in 2006, 47 years after nearly 100 percent of eligible Hawaiians voted for admission to the United States and at a time when the economic and political prospects of Hawaiians have never been brighter, yet legislation is being proposed seeking sovereignty status. So why now? What has occurred in the last few years to prompt this rather extraordinary move?
A proponent of the act responded that it gave the indigenous peoples of Hawaii “autonomy over their natural resources and assets. Hawaii is the homeland for Native Hawaiians. Others have come in and taken over the homeland, at least partly due to federal policy.” The act provided “a structured process to allow Native Hawaiians to deal with longstanding issues of the overthrow such as mistrust and misunderstanding.” (“Overthrow” refers to the overthrow of Queen Liliuokalani in 1893, purportedly with the assistance of U.S. authorities–an event that is the subject of some dispute among historians.)
But again, this response didn’t answer the question of “Why now?” After all, any mistrust and misunderstanding due to events in 1893 were surely present when Hawaiians overwhelmingly petitioned for statehood in 1959. These problems didn’t just erupt in 2006.
The uncontroverted testimony of another witness was more precise: the legislation was prompted by the Supreme Court’s decision in Rice v. Cayetano, a voting-rights case that could render certain Native Hawaiian racial classifications and privileges suspect.
The witness further testified that the dominant purpose of the act was to provide an alternative justification for maintaining the racial-preference system for Native Hawaiians operated by the Office of Hawaiian Affairs.
My second question was “What’s the end game?” The testimony at the hearing was replete with references to “methods,” “processes,” and transitory remarks suggesting that the Native Hawaiian Governing Entity (NHGE) that would be established by the act was not the end but the means thereto.
Several commentators have suggested that the goal of the act is secession–Hawaiian independence–citing statements made by various supporters of the bill. None of the witnesses at the Commission hearing identified secession as the goal. In fact, no concrete explanations of the target were proffered.
Of course, the act contemplates that the NHGE will negotiate with the U.S. government regarding the transfer of land, natural resources, and other assets. While of obvious significance, even this doesn’t seem to be the ultimate aim of the legislation. Tucked away in one of the last sections of the bill, however, is an interesting clause that may provide guidance:
8(c)(1) IN GENERAL–Nothing in this Act serves as a settlement of any claim against the United States.
Section 8(c)(1) is a function of the 1993 Apology Resolution in which Congress, on behalf of the United States, apologized to the Native Hawaiian people for the 1893 overthrow of the Hawaiian Kingdom. The Resolution implicates a host of possible claims against the U.S. for losses and “ramifications” related to such overthrow. The statute of limitations for bringing any claim, as noted in the act, is a full 20 years from the date the U.S. recognizes the NHGE.
There are innumerable constitutional and policy issues raised by the act. Before its passage Congress should also assess the potential costs associated with 20 years of lawsuits and possible damages resulting therefrom.
—Peter Kirsanow is a member of the National Labor Relations Board . He is also a member of the U.S. Commission on Civil Rights . These comments do not necessarily reflect the positions of either organization.