Ka Wai Ola - Office of Hawaiian Affairs, Volume 9, Number 9, 1 September 1992 — OHA's federal bills call for Hawaiian sovereignty [ARTICLE+ILLUSTRATION]

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OHA's federal bills call for Hawaiian sovereignty

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Questions and answers on federal bills

OHA's Committee on Sovereignty has been holding a series of educational meetings featuring a panel of sovereignty models and presentation of the three bills OHA has endorsed for submission to Congress in January, 1993. The format of the meetings is ques-tion-and-answer and many questions have centered around the three draft pieces of legislation — draft bills for Native Hawaiian recognition and restoration, Native Hawaiian claims settlement, and Native Hawaiian's federal right-to-sue (For complete text of the draft bills eall OHA's governmental affairs officer at 586-3735.)

The ideas presented in these bills have had exhaustive review by the Hawaiian community during the past few years. In 1989, OHA published its Draft Blueprint whieh formed the basis of these bills. This blueprint was published in the loeal newspapers and distributed widely in all Hawaiian communities. Informational eommunity meetings and hearings held throughout the state as well as several Western states followed, involving all OHA trustees. Comments from these meetings were recorded and considered in revising the blueprint. In 1991, U.S. Sen. Daniel Inouye and the staff of the Senate Select

Committee on Indian Affairs held a series of meetings to consider federal legislative models and circulated two draft bills to gather comments from all members of the Hawaiian eommunity. The three bills also reflect many of the ideas received at these meetings.

According to Clayton Hee, OHA board chairman. the trustees feel that these bills present a consensus position reflective of the views of a broad cross-section of the Hawaiian eommunity. New trustees joining OHA over the years have not departed from the commitment to address and resolve the issues reflected in these three bills.

The bill calling for restoration of the Hawaiian nation provides for all Hawaiian groups and their leaders to play an active role in contributing the ideas that have already been developed by their groups. What follows are brief summaries of the bills and some of the questions asked by those attending the recent educational meetings held by OHA's Committee on Sovereignty and their answers. OHA legal counsels Jon Van Dyke, an expert in native rights, and Paul Alexander, OHA's representative in Washington, provided these answers to help clarify the draft legis-

lation for the community. The Native Hawaiian recognition and restoration act calls for the U.S. to recognize the unique status of Native Hawaiians and authorizes the establishment of a Native Hawaiian government with a similar status and relationship to the U.S. as that of recognized Indian tribes. The establishment of a recognizable Native Hawaiian government will be brought about by:

• Constitutional convention convened by OHA to include 101 delegates elected from districts for developing an organic document to govern Native Hawaiian affairs. Draft documents would be subject to hearings in eaeh district. • Ratification election must return a majority approving vote of Native Hawaiian voters. Constitutional eonventions and ratification elections will eominue until a governing document is approved.

• Action by the U.S. President to submit the petition for recognition to Congress. • Action by Congress whieh upon receipt of the petition shall recognize and restore the governing power • Appropriations. The Administration of Native Affairs (ANA) shall appropriate $2 million per year to fund the

process. NA NINAU 1. How will the Native Hawaiian Government be re-established? A Constitutional convention will be convened to prepare a governing document that will provide the framework to guide the Native Hawaiian Government. This Convention will determine what powers the new government should have, and how decisions should be made.

2. Who will attend this Constitutional Convention? 101 delegates will be elected by persons of Hawaiian ancestry. Districts will be drawn to ensure that eaeh Hawaiian will have about the same voice in selecting delegates. Some districts will be single-member districts, reflecting Native Hawaiian population in that district while others will be multi-member districts in whieh up to five delegates will be selected. 3. What will happen to the document created?

After the Convention drafts a governing document, it will recess so 'that hearings ean be held throughout the Hawaiian community to receive eomments on the draft. The Convention delegates will then reconvene to make changes if needed. continued on page 12

Questions and answers on federal bills

4. Who will approve this document ? The final document will be votod upon by Native Hawaiians and will be adopted if a majority of the eligible voters approve it. If it fails to receive a majority, another Constitution il Convention will be convened to dr: ft another document, whieh will then ' e submitted to Hawaiian voters f r another vote. This process will eo - tinue until a governing docume t receives a majority vote. All perso s of Hawaiian ancestry will be eligit e to vote on whether to approve ihe pr - posed document.

5. What powers will the re-esta - lished Native Hawaiian Governme t have? The Constitutional Convention w 1 determine what powers tl i Government will have. lt ean have i broad range of legislative powei , including the power to regula e domestic relations, pass ordinances ( i heahh and safety issues, zone ai 1 manage lands, tax and so on. T1 e Convention may authorize the r - established Government to administ r courts, run schools, establish a wt - fare program, build roads, and undt - take all the other responsibilities f governments.

6. What role will OHA play ? Because of the responsibiliti s given to OHA in Hawai'i's sta e Constitution and because the OH t Trustees are Hawaiians elected by i I persons of Hawaiian ancestry ar 1 reflect the diversity of opinion in tl ; Hawaiian community, it is appropria : for OHA to assist the process i f developing a Native Hawaiir ī Government. This bill identifies OH i as the body that should initiate tl : process of drawing the election di ■ tricts and convening tl : Constitutional Convention. OHA w: I also assist in conducting education 1 meetings regarding the options op( ī to Native Hawaiians in re-establishii » their government. 7. In the bill Native Hawaiian , ; defined as someone who is a citize i of the U.S. who is a descendant < f the aboriginal people prior to 177 . Why is the Native Hawaiian define i as aU.S. citizen?

Native people within the U.S. typ - cally have dual citizenship — citizei - ship in their tribal group or nati\ i government and citizenship in tf j United States of America. The Nati\ e Hawaiian Government is designei along this same model — a natic ī within a nation — and its citizer.s would also be U.S. citizens. Native Hawaiians who have movei to another country and become cit - zens there would not be eligible to 1 e citizens of the Native Hawaiian Government because they would nnt be U.S. citizens. According to tle United States Constitution, a person s a U.S. citizen if born in the United States or has become naturalized as a U.S. citizen and has not renounced

U.S. citizenship by becoming a citizen of another country. 8. What about the many other groups pursuing the goal of establishing a sovereign nation? All groups will be able to run candidates for the Constitutional Convention in order to influence the type of government that will be developed. The proposed bill also says that OHA will consult with other groups interested in sovereignty and self-determination on a regular basis.

The Native Hawaiian caims settlement act calls for return of all federal lands (abut 400,000 acres) and payment of $10 billion in reparation. A separate settlement with the state transfers: • all Hawaiian Home Lands, • 20 percent of the cash value of all public lands held by the state, and • 20 percent of the revenues generated on the rest of the land held by the state to benefit those with at least 50 percent Hawaiian blood.

ineome transferred to the Hawaiian nation shall be free from federal or state tax. After all conditions have been met. the Native Hawaiian Government waives its rights to land or damages against the U.S. and state of Hawai'i arising out of the overthrow of 1893. NA NINAU 1. What is the purpose of the act? The purpose is to settle claims that the indigenous people of Hawai'i have against the U.S. arising out of the 1893 overthrow of Queen Lili'uokalani, including the loss of eommon lands and the right of self-

governance; and to settle claims against the state of Hawai'i with respect to the eommon lands. Substantial portions of lands are to be returned to the desendants of the original inhabitants of Hawai'i and held in trust for their benefit.

2. Is there to be another Trust, like Hawaiian Homes then? The lands returned pursuant to this statute will be controlled by the Native Hawaiian Government, whieh will be created according the Native Hawaiian Recognition and Restoration Act. Although the lands will still be held in trust — in the sense that some restrictions will govern the sale and transfer of the lands in order to protect them for future generations — decisions regarding the management, development, and use of the lands will be made by Native Hawaiians through the government they create.

3. What federal and state lands are referred to in the bill? Why isn 't specific language included to describe these lands and their boundaries? What about lands the state has transferred to the counties? All of the lands presently owned by the federal government (about 400,000 acres) will be transferred to the Native Hawaiian Government. Those lands that the federal government feels are essential for nahonal security will be leased back at fair market rates. The lands that are now nahonal parks on Maui and the Big lsland will remain as parks and will be managed jointly by the National Park Service and the Native Hawaiian Government. OHA has

conducted an inventory of all the federal lands, and another inventory is currently being undertaken by a federal agency. Of the about 1.35 million acres presently held by the state government, including Hawaiian Home Lands (about 200,000 acres), lands equal in value to the appraised cash value of 20 percent will be transferred to the Native Hawaiian Government. Specific lands will be

determined by negotiations between the Native Hawaiian Government and the state government. Lands currently held by the counties could be included in this package. Submerged lands and offshore waters will also be among the areas transferred to the Native Hawaiian Government.

4. When the state returns land, the bill says that title will be transfened to the U.S. for the benefit of all Hawaiians. Why to the U.S.? This approach is used by native people throughout the United States, and is designed to protect the lands for future generations, and to ensur ; that they are not transferred, sold, or otherwise lost. The United States is the trustee of the land, but all decisions regarding the management, development and use of the lands are

made by the native people. 5. The bill requires the United States to pay the Native Hawaiian Government $10 hillion for the use of Native Hawaiian lands since 1898 and for the loss of sovereignty. \\here does that figure comefrom? This is a figure that has been suggested in previous bills drafted during the past 20 years. The loss of sovereignty is such a severe loss that it ean-

not realistically be compensated for by any amount of money. The use of some of the very best Native Hawaiian lands by the federal and more recently by the state government for almost 100 years without eompensation is a loss of enormous eeonomie proportions. The $10 billion figure was selected as a very large amount that would recognize that major loss and provide the new Native Hawaiian Government with a solid eeonomie foundation for the future.

6. Is OHA setting itself up as the Native Hawaiian Government? No. The Native Hawaiian Government will be re-established by the Native Hawaiian Recognition and Restoration Act. Should land and other assets be returned before its reestablishment, OHA will hold them until it is re-established. OHA is

specifically authorized to play this role in Hawai'i's constitution and statutes and because the OHA Trustees are democratically elected by persons of Hawaiian ancestry and are thus accountable to them.

7. Why give up any of the lands to the state? Don't Native Hawaiians have full elaim to all lands now held by the state that were obtained at the 1898 annexation? Native Hawaiians do have a elaim to all these lands, but the statutes and agreements enacted since 1898 state that the benefits of these lands are to be shared between Native Hawaiians and the general public. The OHA Trustees have tried in this proposed bill to put forward a realistic proposal that would ensure that the Native Hawaiian Government has a substan-

tial land base and assets to ensure its prosperity. lt was thought that the proposal would be taken more seriously if it is recognized as a thoughtful compromise, designed to protect the rights of Native Hawaiians and recognize the interests of others. However, lands retained by the state will still benefit the Hawaiian eommunity. Under this bill, the lands that remain with the state of Hawai'i will still be viewed as a public land trust, and 20 percent of the revenues generated by these lands will be distributed to the Native Hawaiian Government for the benefit of persons with 50 percent or more Hawaiian blood.

8. Why keep using a blood quantum that divides our people? The Trustees wanted to preserve and protect the current rights of the 50-percent Hawaiians. This issue ean be re-examined by the Native Hawaiian Government after it is reestablished. and amendments to this provision ean be considered in the

future. 9. Why include a waiver clause? All bills that settle claims between the United States and native peoples include a waiver clause. It is unrealistic to expect the U.S. Congress to enact a comprehensive settlement act like this without a waiver. The Hawaiian Community should consider tfie content of this bill carefully and determine whether it is a fair settlement of Native Hawaiian claims. 10. Why doesn't the bill include an apology?

The findings in Section 1 provide an outline of the history of the illegal overthrow and annexation of Hawai'i and thus constitute a recognition that a wrongful act occurred. The Trustees felt ihat it was not necessary to seek a formal apology and that it was far more important to obtain compensation through a return of lands and moi ey and to re-establish the Native Hav. aiian Government.

liie federal right-to-sue act proposes that the United States waive its sovereign immunity against claims associated with Hawaiian Home Lands whieh it administered from 1920 to 1959. Bringing suits against the state is more difficult. The llth amendment restricts individual suits against a state in federal court without a state's conseifl. However, the U.S. government ean sue a state without its eon-

sent. To make the state accountable for its administration of DHHL since statehood, the bill calls for the creation of a federal Trust Counsel. The Trust Counsel would then investigate claims to determine their validity. Meritorious claims are forwarded to the U.S. Attorney General for action. Rejected claims may be brought for a

second review by appealing to any federal district court. In suits that name not only the state but the U.S. as well, the Trust Counsel would appoinī Special Counsel to proceed with them to avoid any conflict of interest. Both individual claims and class action suits are allowed in this bill.

NA NINAU 1. Why is a right-to-sue act needed? Don't Native Hawaiians already have the right to sue? Native Hawaiians have the right to sue for deprivation of constitutional rights just as other U.S. citizens have, but they do not have the right to sue in federal court for injuries to the Hawaiian Home Lands Trust. Recently, the state legislature established a procedure for suing such injuries through an Individual Claims Commission, but no procedures are available to sue the federal government, or the state government in federal court.

2. Does this proposed bill allow only the 6,000 who received land during the last 70 years to sue, or does it also provide a right to sue to the heirs of the 30,000 who died while they were still on the waiting list? The bill allows all persons who have individual claims to sue. Persons ean sue on their own behalf or on behalf of deceased persons if they are the legal heirs of such persons. A elaim ean be based on a wrong suffered by a person on the waiting list, if, for instance, a person was improperly removed from a list or wrongfully passed over in favor of another beneficiary. 3. If a person sues and wins, who receives the settlement — the individual or the trust?

More Q & A

(continued from page 13) If an individual wins on a elaim based on a wrong suffered by that individual (or the individual's ancestor), then the individual will receive the money or land that is awarded as compensation for the wrongful act. Claims ean also be brought on a class action basis on behalf of Hawaiian Home Lands Trust for the failure of the state or federal government to protect the trust and its resources, and if such claims are successful the award of land or money will go to the Trust for the benefit of all the beneficiaries. Reasonable costs and attorneys fees ean also be awarded to claimants who are surrp„ssfiil

4. How does this bill affect suits already in progress? Claims ean now be brought against the state government through the Individual Claims Commission, whieh was recently established by state statute. The proposed bill would also allow claims to proceed in federal court. In some instances, the same elaim could be brought in both state and federal tribunals, but if appropriate compensation were provided in one forum, the elaim in the other forum would have to be dropped. 5. Why is a Trust Counsel part of this draft when a similar bill recently considered by the U.S. Congress was setaside?

The Trust Counsel is included in this bill as a device to allow the state government to be sued in federal court. Even though the 1 1 th Amendment restricts individuals from suing states in federal court, it does not prohibit the federal government and its agencies from doing so. The idea of the Trust Counsel was taken tfom bills introduced by others and recently considered by congressional committees and their staff. The Trustees hope that the manner in whieh the idea is developed in this bill will meet favor with Congress. 6. How will the Trust Counsel be selected?

Because it is essential that the Trust Counsel be an individual who is respected by members of the Hawaiian community as a fair and sensitive person, the selection of the Trust Counsel must have the approval of the Native Hawaiian people. At the same time, in order to be a federal official, the Trust Counsel must be app>ointed by a member of the federal government. To meet these somewhat conflicting conditions, a complicated selection scheme is proposed.

Native Hawanan orgamzations will make recommendations to the Governor of Hawai'i who will then select three individuals to recommend to the Secretary of the U.S. Department of Interior. To be eligible for consideration, a person must have an extensive background in Native Hawaiian issues and must have resided in Hawai'i for at least five of the previous 10 years. The secretary will then select one of these three p>ersons who will become Trust Counsel on an interim basis. This person will not be officially seated as Trust Counsel, however, until he or she is approved by a majority of the voters of Hawaiian ancestry who vote at the next scheduled election. The Trust Counsel will then serve for a four-

year term, and ean be reappointed onee. The Trust Counsel cannot be removed from office except for cause after a hearing. 7. Does the Trust Counsel have the final say on whieh claims are brought to federal court?

m No. If the Trust Counsel determines that a elaim has merit, the matter will be referred to the U.S. Attorney General who should bring an action on behalf of the United States against the State of Hawai'i. If, however, the Trust Counsel thinks a complaint is without merit, the complainant ean bring the case to a federal court to review the Trust Counsel's decision. 8. What if the U.S. Attorney General does not act even though the Trust Counsel thinks a Clairn is meritori • ous?

Then the Trust Counsel ean appoint a Special Counsel — or independent prosecutor — to bring the elaim against the State. 9. Will Hawaiians who think they have a valid elaim receive any help in preparing the materials necessary to persuade the Trust Counsel that their claims have merit? Yes. The Trust Counsel will be able to allocate funds to claimants to assist them in developing the evidence neeessary to prepare a elaim for submission.

NA NINAU HOU 1. Why bother with all this? Why not justsecede from the United States? Some Hawaiian groups do favor separating ffom the United States and establishing an independent nation with complete sovereign status,as other members of the United Nations. The OHA Trustees do not recommend this approach, and instead would like to establish a status similar to that of other Native Americans and natives in Canada and other countries — a nation within a nation. This type

of nation has self-governance and sovereignty over its own internal affairs, but does not engage in foreign relations with other independent nations. These native nations are generally not subject to state government, but are subject to some regulation by the federal government. This status would allow Native Hawaiians to retain the benefits of U.S. citizenship, but would also allow substantial autonomy and self-governance. 2. Why are all these bills being pre ■ sented to Congress all at onee? Wouldn't it be better to establish the new nation first and then seek redress?

The OHA Trustees have presented these three bills as a package because they feel it is urgent to resolve these long-overdue claims as soon as possible. The Trustees think that Congress is more likely to take these bills seriously if they ean see the whole paekage and understand the full nature of the problem and the proposed solution. The Trustees feel that these bills are fair and realistic. They are not being put forward as a matter of bargaining strategy, but are viewed as a serious solution to the long-standing claims of Native Hawaiians. The Trustees feel that the 100th anniversary of the overthrow of the Kingdom of Hawai'i is an appropriate time to move on these claims.