Cover Story

Image: Photograph by Christen Vidanovic

Understanding the Akaka bill


Cover image for Aug 19, 2009

This feature aims to explain the fundamental effects of the Native Hawaiian Government Reorganization Act–the Akaka bill–currently before the United States Senate. This piece of legislation has the power to shape Hawaii’s future for generations.

We’ve done our best to isolate the direct, legal processes this bill would set in motion. In some cases–the bill’s connection to Hawaiian independence, the arguments over whether or not it is race-based–some degree of analysis or inference has been unavoidable, but we’ve tried to keep it to a bare minimum. This report is the result of extended close reading of Senate Bill 1011, conversations with local attorneys and research into the history of this legislation and other efforts, in the United States and elsewhere, to create reconciliation between modern governments and native peoples.

What will the Akaka bill do?

The Native Hawaiian Government Reorganization Act establishes a process by which a Native Hawaiian government may be created. It also guarantees that once a Native Hawaiian government is established, the United States will formally recognize that government, and will recognize Native Hawaiians as an indigenous people.

If there is a new Native Hawaiian government, doesn’t this mean there would be a new nation?

Yes, in the sense that the word is used to refer to Native American tribes such as the Lakota nation, the Cherokee nation, etc. The Native Hawaiian nation would not be a new country with, for example, its own foreign policy or armed forces. It would be a self-governing entity within the United States, similar in many respects to a county.

What is the process contained in the Akaka bill? What kind of government does it create?

The bill does not create a government. It lays out a series of steps by which Native Hawaiians can form a government of their own choosing. If the bill emerges from Congress and is signed into law by the president, it will set in motion the following process:

The Secretary of the Interior, in consultation with Native Hawaiian organizations, will create a commission responsible for organizing a list of all Native Hawaiian adults who want to be involved in the creation of the new Native Hawaiian government [the bill calls it a “governing entity”]. The commission is also responsible for certifying that everyone on the list meets the temporary definition of “Native Hawaiian” established by the bill. The commission will be made up of nine members, and its only requirements for membership will be at least 10 years of study of Native Hawaiian geneaology and the ability to translate Hawaiian documents into English.

The commission has two years to deliver its list to the Interior Department.

How does the bill determine eligibility? Who is a “Native Hawaiian” according to this proposal?

For the purposes of the list of Native Hawaiians authorized to participate in the reorganization of a Native Hawaiian government, a person must have direct descent from the indigenous people who lived in Hawaii prior to January 1, 1893, or descent from someone eligible in 1921 for the Hawaiian Homes programs. In practical terms, these requirements include anyone whose ancestors were in Hawaii prior to the arrival of Captain Cook, and exclude anyone whose ancestors were not.

The bill also says that as part of the creation of the Native Hawaiian government, the definition of “Native Hawaiian” and the right to participate in the affairs of the new nation is up to this group of Hawaiians to decide.

What happens once the list is complete?

The next step will be the formation of the Native Hawaiian Interim Governing Council through an election open to everyone on the commission’s list. Native Hawaiians will establish criteria for service in the interim council and determine its structure.

In what amounts to a constitutional convention, the members of the interim council would be required to draft proposed governing documents for the membership, leadership and structure of the new Native Hawaiian nation.

Will the interim council determine the shape of the Native Hawaiian government?

No. The council’s job is to draft a proposed government. Whatever definitions and structure the interim council creates will be put up for a vote by everyone on the Native Hawaiian list. Until a majority of the voters on the list approve the governing documents, the council’s proposals remain proposals only. Once they meet with the approval of the Native Hawaiian community, and are judged by the U.S. Secretary of the Interior to sufficiently enable the new nation to negotiate on behalf of native Hawaiians with the state and federal governments, officers would be elected and the new Native Hawaiian government would take shape.

Are there restrictions on the kind of government Hawaiians may create?

No. It could take any form of government known to us, or create a new one. The new Hawaiian government will be created democratically, but there is no requirement that it take the form of a modern representative republic.

How long will it take to reach this point?

It’s difficult to say, but given the enormity of the tasks involved, five years seems like an absolute minimum. And that is assuming that the process is not delayed by litigation, which is entirely possible.

What would be the purpose of this new Native Hawaiian government? What would it do?

The bill recognizes, among other things, that Hawaiians as the indigenous, native people of what is now the State of Hawaii have the right “to autonomy in their internal affairs…an inherent right to self-determination and self-governance [and] the right to become economically self-sufficient.” The Native Hawaiian government would administer, regulate or facilitate those and other activities as is the case among members of Native American tribes or nations in North America.

That process begins with negotiations between the new Native Hawaiian government and the State and Federal governments–but mostly the State–for the transfer of assets from the State of Hawaii to the Hawaiian nation.

Who owns the crown lands of Hawaii?

Carlos Andrade’s 1997 map of crown lands and ceded lands, some of which may form the basis of a new Native Hawaiian nation.

What assets would be transferred? What would the Hawaiians control?

The bill establishes a process, not any specific outcome. That said, negotiations, and the ultimate assets of the Native Hawaiian government, would clearly include some combination of cash, land and rights (such as rights to a share of natural resources).

It is widely expected that the so-called ceded lands and possibly also the crown lands could provide a starting point for negotiations. These lands, held in part for the benefit of Native Hawaiians under the terms of Hawaii’s admission to the Union, in addition to the Hawaiian Homes lands, could be transferred in whole or in part.

Would the Native Hawaiian government be able to seize private land?

No. The transfer of assets will be a negotiation, not a land grab. If private land were transferred, it would require the approval of the state and federal governments.

Could the Native Hawaiian government set up a different system of criminal laws?

No. The bill specifies that the authority and jurisdiction of the state and federal criminal and civil code will remain intact throughout the state of Hawaii, including lands transferred to the native Hawaiian government.

Could the native Hawaiian government eventually set up casinos?

Yes, although not as the law currently exists. Casinos are directly prohibited under the bill as it now exists, but that could change in the future . Legalized gambling could be the subject of future negotiation.

What other kinds of economic activity might the Native Hawaiian government allow or engage in?

The possibilities are extensive and, once again, will be at least in part the subject of negotiations. In other cases, native people have secured hunting, farming and fishing rights–for example, rights to a share of the catch from a certain fishery, or exclusive rights to conduct fishing in specific areas. Water rights could be involved as well. There is also revenue to be gained from leases granted to public and private enterprises doing business on Hawaiian-owned land. Admission fees granting access to cultural or historic sites on Hawaiian land now freely accessible are possible.

What about the descendants of people who lived here at the time of the overthrow but are not necessarily considered “Native Hawaiian?” Would they also be recognized?

No. Though it references the 1893 overthrow of the Kingdom of Hawaii, of which some non-Hawaiians were citizens and many others residents, the bill is aimed at recognizing Hawaii’s native, indigenous people, similar to the kind of recognition of many Native American tribes.

The Hawaiian society in 1893 was multi-ethnic and multi-cultural. Why is the U.S. only acknowledging Native Hawaiians?

Since the post-colonial movements that began in earnest in the second half of the 20th century, indigenous people around the world have succeeded in winning back some measure of economic, cultural and political autonomy. Both U.S. and international law respect the rights of indigenous peoples to self-determination.

The United States apologized for its role in the overthrow in a 1993 resolution, and the bill’s text mentions the apology among its findings. The political process that led to the drafting of the bill is rooted in the apology’s call for a process of reconciliation between Hawaiians–the indigenous people of these Islands– and the United States.

The Akaka bill does not directly link the fall of the monarchy to what it calls the Hawaiian right to self-determination. Rather, it calls this right “inherent” to the native inhabitants of all lands that later became part of the United States. Thus, the bill’s authors posture that because the right to self-government is inherent, it does not emerge from the events that led to the United States’ apology, but exists independently.

Significantly, the Akaka bill does make reference to the 1893 overthrow in both its findings and in the context of the definition of “Native Hawaiian.” Some observers believe that because of the multi-ethnic nature of the Hawaiian nation at that time, the use of that date muddies the distinction between the original native inhabitants of the Islands and all of the people who lived in the kingdom at the time of the overthrow.

Native Hawaiians are one of a very few remaining groups of indigenous Americans without formal recognition, some form of self-government, and a process of reconciliation–ongoing or resolved–with the government of the United States. The Akaka bill would bring Hawaiians into a very similar–though not identical–relationship to the U.S. governments as currently exists among Native Americans and Innuit (native Alaskan) people.

All Americans are promised equal protection, and discrimination on the basis of race is illegal. Isn’t this whole project unconstitutional?

It is virtually certain that the Akaka bill would be challenged in court immediately upon being signed into law. Federal courts have struck down many Hawaiians-only laws, programs and policies in recent years. It is possible that the courts would reject Hawaiian self-government and the transfer of state assets as unconstitutional by finding that the creation of a Native Hawaiian nation discriminated against non-Hawaiians.

Is there precedent for the Akaka bill?

Similar processes of reconciliation have taken place between indigenous people and larger sovereign states over the past 40 years. Those efforts include the Maori movement in New Zealand and the efforts of Native Americans in the United States.

These processes have taken decades to unfold, and have been contentious, at times highly so. If the experiences of other native peoples are any guide, we can expect both the government-formation process and later the negotiation for assets to be drawn-out and contentious.

Is this bill a first step toward the independence of Hawaii from the United States?

Not in a legal sense. In fact, the Native Hawaiian government would surrender its right to pursue sovereignty-related claims in federal court in exchange for federal recognition.

Does the bill end the right of Native Hawaiians to pursue independence/full sovereignty?

While Native Hawaiians must give up federal sovereignty-related claims against the United States in exchange for recognition as indigenous Americans, the United States can be expected to fiercely oppose Hawaiian independence as a matter of fundamental sovereignty in any case. Also, the right to independence more likely exists under international law, which is not affected by the Akaka bill. Under international law, and specifically under the 2007 Declaration on the Rights of Indigenous Peoples, native people have the right to self-determination and to autonomy. Some Hawaiian nationalists are in the process of seeking the sponsorship of a UN member nation through which to advance their claims to independence. It’s difficult to see how the Akaka bill would alter that process in any way.