Ka Wai Ola - Office of Hawaiian Affairs, Volume 8, Number 10, 1 October 1991 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

X"X"X"X"X"X#X"X"X"X"X"X"X"X"X"X"X"X"X"X"X"XtX"X?X!X"X"XVXVXVXV>X\ By Paul Alexander Washington, D.C. Counsel for OHA

lnouye draft bills start Native Hawaiian claims discussions

Previous columns have focused on possible aspects of a potentia! and multiple Congressional approach to resolving claims of Hawaiian Natives. Three critical claims require resolution. Thev are the over-

■ tm - throw of the Hawaiian Native government in 1893 and the subsequent seizure of Native lands; the termination, or, perhaps more accurately, the suspension of the right of self-government of Hawaiian Natives; and the management/mismanagement of the Hawaiian Homes Trust from 1921 through 1959 by the United States and from 1959 to the present by the State of Hawai'i, as well as the failure by the United States to supervise the State of Hawaii's management. Meetings have been occurring between various Hawaiian Native organizations, individuals, and staff of the Hawai'i congressional delegation in mutual attempt to evolve a federal claims package. On Aug. 29, as part of this continuing delegation, Sen. Daniel K. Inouye presented to the group two "draft" bills. These bills, Inouye indicated, were intended to be starting points for the Hawaiian Native community to work on, change, or even to reject. It is important to indicate that Inouye was, with these draft bills, following a practice that he has evolved as Chairman of the Senate Select Committee on Indian Affairs — a process that requires the key legislative elements to eome from

the people (Hawaiian Natives) most affected by the legislation. It is a process of meetings, drafts, revisions, and above all consultation. The Inouye draft bills address two of the three critical claims areas I initially identified: the right of self-government and the administration of the Hawaiian Homes Commission. The overthrow of the queen and taking of Hawaiian Native lands still needs to be addressed. The draft bill, entitled "To provide a procedure for the resolution of certain claims arising out of the administration by the State of Hawai'i and the United States of the Hawaiian home lands," contemplates two separate procedures: one for claims against the U.S., the other for claims against the state. The process for the claims against the state of Hawai'i, in effect, tries to activate the dormant responsibility of the U.S. to enforce the trust against the state. The "draft" bill provides that for a six-year period individuals ean bring complaints against the state to the U.S. Secretary of the Interior. The secretary would then be responsible for investigating complaints and recommending to the U.S. Department of Justice those claims found to have merit. The U.S Department of Justice ean sue* the state if it decides to proceed. The process for claims against the United States for administration of the Hawaiian Homes Commission is fairly straightforward For a period of six years individuals (eligible beneficiaries) ean bring suit in federal district court. The sovereign immunity of the United States is waived, and the United States is barred from

asserting certain traditional defenses that would not allow older claims. The federal district courts may award monetary damages or "other appropriate relief." The other draft Inouye bill, "Native Hawaiian Recognition & Restoration Act," provides funding and a loose mechanism for Hawaii n Native organizations to eome together (It must be at least a significant number of organizations. ) and form an interim organization to conduct educational meetings, develop a proposed constitution and government structure, hold an election, negotiate with the U.S., the state of Hawai'i and others, and finally to formally petition the United States for recognition as a native government. This draft bill, although potentially the most important in the long term, is clearly a "bare bones" start. Both draft bills have obvious problems. For example, the right to sue draft bill does not seem to contemplate suits on behalf of the trust itself against the United States, and in the portion of the draft >-elating to state administration, no private federal right to sue is provided. In the draft restoration/recognition bill, one problem, for example, is that although jurisdiction may be subject to negotiation, the State of Hawai'i appears to have been provided with more extensive jurisdiction over the Hawaiian native government than other state governments have with respect to Indian tribes. Both draft bills will require extensive evaluation and work before they are ready for introduction. but both are steps forward in the process of vindicating the rights of Hawaiian natives.

'Ao'ao Umikumaono (Pa3e 16> U)al Olg 0 0Q^

Draft bills

from page 15 representatives of the U.S. government and State of Hawai'i. For practical purposes, Inouye said, the interim organization should be one group because Hawaiians are one people. However, he noted this decision will have to be up to Native Hawaiians to resolve. He suggested forming a confederation of organizations who could then preserve their individual identities. The next step will be up to the Hawaiian people, Inouye said, to decide together whieh way they want to go.