UH Law professor Jon M. Van Dyke says law would help heal wounds that have festered in our community for more than a century and facilitate the continued momentum of the Hawaiian Renaissance.
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After more than a decade of discussion, the Akaka Bill is poised for passage this year, but because of the pressure on the Senate calendar its fate remains uncertain. The House of Representatives has passed a previous version by a substantial margin, and the Governor has offered her support to an amended version, so it seems that everything is now aligned for passage. The enactment of this Bill into law would help heal wounds that have festered in our community for more than a century and would facilitate the continued momentum of the Hawaiian Renaissance.
Native Hawaiians are the only substantial population of native peoples in the United States who have never had either a claims commission or a settlement package enacted for them by the federal government. Congress stated in the 1993 Apology Resolution that 1.8 million acres of Government and Crown Lands were acquired by the United States in the 1898 Annexation “without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government.” The 1993 Resolution called for a “reconciliation” between the United States and Native Hawaiians, and the Akaka Bill would be a major step along the path leading to such a reconciliation.
The Akaka Bill – formally called the Native Hawaiian Government Reorganization Act – would begin the process of reestablishing a Native Hawaiian Governing Entity by developing a “roll” of Native Hawaiians who would be members of this new governmental body. Under amendments made in late 2009 pursuant to recommendations of attorneys at the Justice Department knowledgeable about native affairs, membership for those with less than 50 percent Native Hawaiian blood would require some demonstration of a genuine linkage to the Native Hawaiian community, such as knowledge of the Hawaiian language or membership in a Native Hawaiian organization.
Ethnic lineage to a Hawaiian ancestor for this group is thus necessary but not sufficient for membership. This change is significant, because it clarifies that the Native Hawaiian Governing Entity is a political and cultural body, not a racial entity, and thus that this new body will be constitutional so long as it is rationally related to ensuring the continued cultural integrity of Native Hawaiians and to enabling them to exercise self-determination and to become self-sufficient once again. (Once the Native Hawaiian Governing Entity is established, it can change the requirements for membership — and could include, for instance, those with a hanai relationship to a Native Hawaiian family — because every native group is entitled to determine its own membership.)
After the roll of members is established, those on the list will participate in a process to form their government. Meetings and referenda will be held to allow Native Hawaiians to form a government that reflects their heritage and traditions and also allows them to function in the modern age. The members will have substantial flexibility to find the governmental framework that serves their needs. Meetings are already being held with other native groups to learn from their experiences.
The Secretary of Interior will provide a final review of the government that has been created, and if it meets certain minimum requirements spelled out in the Bill, the Secretary will approve it, and Native Hawaiians will then be “federally recognized” in a manner similar to the status held by more than 550 other native groups in the United States.
At this point, negotiations will begin for the return of land and resources to the new Native Hawaiian Governing Entity. No lands now in private hands will be transferred to the new government. These negotiations will involve both the State and Federal governments, and may prove to be challenging. But models are provided by the recent (and continuing) negotiations between Maori tribes and the government of New Zealand (Aotearoa), and by the numerous recent settlements between the United States and native groups across the land. With goodwill, these negotiations can be successful, and the outcome can be beneficial for Native Hawaiians and the rest of us.
In many areas, we now see natives providing an economic engine that brings prosperity to both natives and nonnatives in a region. In Neshoba County, Mississippi, for instance, the 8,000 members of the Mississippi Band of Choctaw Indians have developed industries that have benefited the entire region, and they are now the second-largest employer in their state. Although Native-American communities have control over their members, their lands, and their resources, they almost always work closely with their nonnative neighbors for mutual benefit, and we can certainly expect such a close working relationship to develop in Hawaii.
Opposition to the Akaka Bill can still be found among a group of Republican Senators and among some in Hawaii who argue that its passage will be divisive and will be contrary to American values. The Grassroots Institute, for instance, has developed a series of advertisements denouncing the Akaka Bill by pointing out that wonderful people like Father Damien, Barack Obama, John Young (Keoni Olohana, an advisor to Kamehameha the Great), and Mau Piailug (the Yapese navigator who helped reestablish navigational skills in Hawaii) would not be eligible to benefit from the Akaka Bill, because they are or were not ethnically Native Hawaiian.
It is true that these individuals would not be eligible to be included on the roll of members of the Native Hawaiian Governing Entity, but they would certainly benefit from being part of a revitalized community in which a debt has been properly repaid and the integrity of our host culture has been restored.
The Akaka Bill is carefully designed to address and resolve a wrong that took place – the 1893 participation of U.S. military and diplomatic personnel in the illegal overthrow of the Kingdom of Hawaii and the 1898 acquisition of the Kingdom’s Crown and Government Lands by the United States without the consent of or compensation to Native Hawaiians. It is designed to allow Native Hawaiians to function autonomously according to their traditions, just as every other native group in the United States is allowed to do. Recognizing the uniqueness of native peoples is a central part of the American political system, and it is time that Native Hawaiians are able once again to celebrate their culture and participate as players in our island economy.
When he reintroduced the Bill in 2007, Senator Daniel K. Akaka explained to his colleagues that:
Frustration has led to anger and festered in the hearts of Hawaii’s younger generations, with each child that is taught about this period of Hawaiian history, a loss is relived. It is a burden that Native Hawaiians since the overthrow continue to carry, to know that they were violated in their own homeland and their governance was ripped away unjustly….
It is for this generation that I work to enact this bill so that there is the structured process to deal with these emotional issues….For Hawaii is the homeland of the Native Hawaiian people.
Enactment of the Akaka Bill will not resolve all the problems facing Hawaii, but it will help promote reconciliation and will stimulate Hawaii’s economy for everyone residing in the islands.
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