Ka Wai Ola - Office of Hawaiian Affairs, Volume 7, Number 11, 1 November 1990 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

By Paul Alexander Washington, D.C. Counsel for OHA

Outlook for Native Hawaiians in the 102nd Congress

The standard twoyear life of this legislative Congress, the 101st Congress, is about to end, and when it does an analysis of its aeeomplishments and its failure with respect to Native Hawaiians will be undertaken. Even

though the Congress is not quite over, now is the period of time when concerned and interested parties begin the process of identifying goals for the next Congress. In order to begin this process it is useful to begin with a realistic assessment of what is required to make legislative progress. As noted in a previous eolumn, practically all of the special Native Hawaiian legislation that has been put in plaee over the past 15 years, — including, for example, Administration for Native Americans grants, job training, vocational education programs, library services, parent-child centers, drug-abuse programs, special Native Hawaiian education programs, special Native Hawaiian medical program, Native Hawaiian business loan program. repatriation of Native Hawaiian remains from the Smithsonian Institution — have been packaged within other legislation. The reason for this packaging is the realistic expectation that free-standing Native Hawaiian legislation would be vetoed bv the president. The United States Department of Justice inexplicably confuses the status of Native Hawaiians with that of racial minorities, and as such opposes special or preferential treatment based on race. Advocates for Native Hawaiians point out, of course, that under existing law the United States has a poliheal trust obligation to Native Hawaiians ?s indigenous Native people that justifies preferen-

tial or special legislative treatment. The point, however, is that administration opposition must be taken into account in any long-term federal legislative strategy. A review of the legislative successes already achieved also indicates that the subject matter of the legislation — health, education, etc. — are generally subjects where most parties agree there are needs. Although there are some disagreements over who should operate a particular program, the legislative histories, hearings and submitted testimony and letters, indicate that there was a eonsensus of sorts that the programs were needed. Although abso!ute agreement is rarely achieved, some form of consensus within the affected community needs to be demonstrated to the Congress in order to achieve legislative goals. As the subjects become more controversial, particularlv with respect to addressing the issue of sovereignty — should the Native Hawaiian eommunity be restructured? What form(s) should that structure take? Whieh governmental powers should Native Hawaiians exercise? What is the proper role, if any, of the State of Hawai'i with respect to Native Hawaiians? What is the proper role for the United States with respect to Native Hawaiians, and so on — consensus seems harder to achieve. It is unlikely that any major legislative progress will be achieved in the 102nd Congress on sovereignty until some form of consensus emerges. The August 1989 joint congressional hearings demonstrated that many Native Hawaiians wanted the issues of sovereignty more fully explained and debated in the Native community. Although various proposals for workshops on sovereignty, training session and the like, have been made, a comprehensive effort related to sovereignty issues is not yet in plaee. It is anticipated.

that educational efforts in the area of sovereignty will be a focus during the 102nd Congress. Another critical factor influencing the potential for legislative activity, is the funding that is anticipated to be available. As is well known the federal government is in the midst of a major financial crisis. Many of the proposals for deficit reduction either cut domestic programs, or froze funding levels (some with inflation indexed) on most domestic programs. To date the authorizations and appropriations for Native Hawaiian programs, although numbering in the millions, have been fairly minute parts of the overall federal budget. To keep the existing level of funding, including some adjustments and even some moving of funds to programs from existing overall budgets, for Native Hawaiian programs, is still possible in the 102nd Cong»-ess. However, programs, particularly those with significant costs, such as any reparations or claims legislation for the taking of land from the Kingdom of Hawai'i , are very unlikely in today's budget climate. A superficial review of these legislative conditions — administration opposition, the need for community consensus, and a tight federal budget — does not bode well for major legislative developments in the 102nd Congress. However, in varying degrees these three conditions have been in plaee throughout the last 10 years— time that produced most of the existing Native Hawaiian legislation. In fact, for mueh of this period there was another obstacle, the opposition of Indian tribes and groups to the inclusion of Native Hawaiians in lndian programs. Understanding the nature of the lndian concerns, along with careful coordination and dialogue with lndian tribes and groups, avoided the obstacle of lndian opposition. The same typ» of educated and careful approach will be necessary in 102nd Congress.