Ka Wai Ola - Office of Hawaiian Affairs, Volume 9, Number 3, 1 Malaki 1992 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

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

OHA-sponsored bills take sovereignty to Capitol Hill

Onee again the Bush administration has refused to acknowledge the United States' responsibility for Native Hawaiians. Retreating from the legal analysis adopted during the Carter years, representatives

from the U.S. Department of the Interior and the Department of Justice told the Senate Committee on Energy and Natural Resources that the United States had no trust obligation with respect to the Hawaiian Home Lands program. Throughout the Reagan/Bush years the United States has advocated a legal and philosophical position that considers Native Hawaiians to be a racial minority and not an indigenous or Native people. The distinction is ehheal for when the United States has a trust relationship with Native people it ean constitutionally legislate unique or special benefits for those people. When the group is a racial group the United States ean not constitutionally treat them differently from other groups. What is at stake is the continued ability to develop and fund federal services and programs that benefit Native Hawaiians. As noted in previous columns, the Hawai'i congressional delegation, under the active leadership of U.S. Sen. Daniel Inouye, has consistently advocated for Native Hawaiian programs and services, and has carefully packaged the existing programs in "veto proof" legislation. Not surprisingly Sen. Inouye, and U.S. Sen. Daniel Akaka were very critical of the views expressed by administration witnesses. In sharp contrast to the United States current view of its responsibilities to Native Hawaiians, the trustees of the Office of Hawaiian Affairs unanimously approved a federal legislative package that, if enacted, would restore Native

Hawaiian self-governance, re-establish a land base, resolve the claims arising out of the overthrow of Queen Liliu'okalani, and provide a system for resolving the various claims arising out of the maladministration of the Hawaiian Home Lands Trust. This legislative package consists of three bills: To authorize the reorganization of a Native Hawaiian government and reestablish a federal relationship based on the unique status of the Native Hawaiian people to the United States; To resolve the claims of native Hawaiians to the Crown and Government lands of the Kingdom of Hawai'i obtained by the United States and the State of Hawai'i; To provide for the resolution of certain claims arising out of the administration by the United States and by the State of Hawai'i of the Hawaiian Home Lands. These bills are the result of years of effort by OHA and others in the Native Hawaiian eommunity. The bills foliow the concepts presented in OHA's Blueprint, and incorporate the efforts revolving around Sen. Inouye's draft discussion bills. Realizing the passage of these bills will require a massive undertaking and probably many years. The Restoration bill provides for OHA to convene a constitutional convention of 101 elected Native Hawaiian delegates. Delegates are to be elected by Native Hawaiian voters from districts that follow traditional geographic divisions, providing equal representation for all Native Hawaiians. The delegates are to draft a governing document for the Native Hawaiian government. The governing document will need to approved by a majority of the Native Hawaiian voters. As part of the process, educational meeting and seminars will be held, and negotiations conducted with the United States and the State of Hawai'i. Onee the governing document is approved it is to submitted to the President and then to Congress for formal recognition. The bill states that the Native Hawaiian government shall

conduct its relationship with the President or the President's designatee, but not with the Bureau of Indian Affairs. Among the powers of the Native Hawaiian government, the proposed bill lists the power to: define membership; regulate conduct; adopt ordnances for health, safety, and welfare; regulate domestic relations and inheritance; administerjustice; levy taxes, zone lands, produce ineome from lands and regulate conduct on lands; to receive and hold any lands, and administer any trust established to benefit Native Hawaiians; to issue allotments, assignments, leaseholds, or homesteads to individual Hawaiians; and to. regulate hunting, fishing, gathering access and other traditional rights and practices. The proposed bill places the Native Hawaiian Government in a govern-ment-to-government relationship with the United States of America and does not make the Native Hawaiian government subject to the jurisdiction of the state of Hawai'i. The proposed bill to resolve claims arising out of the overthrow of the Queen provided for a multi-part settlement where, in exchange for a legal waiver of the claims, the Native Hawaiian government would receive from the United States all former crown and public lands still retained by the United States and $10 billion dollars in damages; and from the state of Hawai'i the Hawaiian Home Lands Trust; land having the value of 20 percent of the ceded lands held by the state, and a 20 percent ineome stream from remaining lands retained by the state. Provisions are made for market value lease-backs for critical lands for the federal and state governments, and for conventual sales or exchanges. For nahonal parks, joint management is provided. Finally, the proposed bill to resolve claims relating to the Hawaiian Homes Lands Trust provides direct access to federal court for individuals and Native Hawaiian organizations for claims against the United States for the federal administration of the trust from 1921 to 1959. The United States' sovereign immunity and other defenses are waived under terms of the proposed legislation. Claims against the State of Hawai'i for its administration of the trust from 1959 onward are presented to a specially created Trust Counsel. The individual heading this Office of Trust Counsel is to be nominated by Native Hawaiian organizations, appointed by the Secretary of the Interior and confirmed or rejected by a vote of Native Hawaiians. The Trust Counsel, located in Hawai'i, would investigate and make a determination on whether any elaim is meritorious and if it is, recommend the elaim to the U.S. Attorney General for suit against the state of Hawai'i. Decisions by the Trust Counsel are appealable to federal court. If the U.S. Attorney General refuses to bring suit, the Trust Counsel may appoint special counsel to bring suit on behalf of the United States. Establishing the Trust Counsel provides a mechanism for researching claims, and avoiding possible Constitutional problems, in trying to sue the state without a state waiver of sovereign immunity.