Ka Wai Ola - Office of Hawaiian Affairs, Volume 22, Number 8, 1 August 2005 — Akaka opponents continue to fan the fires of fear; purpose of legislation is clear [ARTICLE+ILLUSTRATION]

Akaka opponents continue to fan the fires of fear; purpose of legislation is clear

Aloha e nā 'ōiwi 'ōlino, nā pulapula a Hāloa, mai Hawai'i a Ni'ihau, a puni ke ao mālamalama. As the fires of distortion and fear about S. 147 continue to be fanned by opponents, "Grassroot Hawai'i Institute, Aloha4All, Bruce Fein, and Arakaki plaintiffs, informed thinkers should focus on the "true facts". Fact #1, the purpose of S.147 is "to provide a process for the reorganization of a Native Hawaiian governing entity and the reaffirmation of the political and legal relationship between the United States and the Native Hawaiian governing entity for purposes of continuing a government-to-governmentrelationship". (Section 4(a)5(b) S147). Fact #2, S.147 "does NOT create a race-based government. In fact, the fundamental criterion for participation in the Native Hawaiian governing entity is being a descendant of the native indigenous people of the Hawaiian islands, a status Congress itself has characterized as being nonracial. For example, Congress has expressly stated that in establishing

the many existing benefit programs for Native Hawaiians it was, and I quote, 'not extend(ing) services to Native Hawaiians because of their race, but because of their unique status as the indigenous people ... as to whom the United States has established a trust relationship. Thus Congress does not view programs for Native Hawaiians as being "race-based" at all. Accordingly, a Native Hawaiian Governing Entity by and for Native Hawaiians would similarly not constitute a "race based" government." (Testimony of Hawai'i Attorney General Mark J. Bennett, July 19, 2005, U.S. House Subcommittee on the Constitution). (Reference Issue Papers regarding the following on www.nativehawaiians. eom) Fact #3 "the Constitution of the United States addresses the status of the indigenous native people of America. That status is founded not upon consideration of race or ethnicity, but upon the reality that the indigenous, native people occupied and exercised sovereignty over the lands and territories whieh were later

to become part of the United States. Their sovereignty existed before the formation of the United States, and the United States Constitution recognizes their status as sovereigns, in the same clause of the Constitution that recognizes the sovereignty of the several States and the foreign nations. The laws of the United States reflect the constitutional status of the indigenous, native people of America. Upon this constitutional foundation, hundreds of Federal laws have been enacted that express the nature of the political and legal relationship the United States has with the sovereign governments of the native people of this land - American Indians, Alaska Natives and Native Hawaiians." Fact #4, "this legislation does not permit a land grab, S.147 (HR309) does not enable the reorganized Native Hawaiian government unilaterally to take federal, state or private lands. Rather, S.147 (HR 309) provides that federal and/or state land would be transferred to the Native Hawaiian government only upon agreement of the respective state and federal parties and only where such

agreement is implemented through State or Federal law". Fact #5, "this legislation does not facilitate secession; S.147 (HR 309) simply provides a process for the reorganization and reaffirmation of the Native Hawaiian governing entity. In this respect, the bills are similar to other federal legislation that recognizes and reaffirms the United States relationship with American Indians in the lower 48 states and with Alaska Natives in Alaska. Similar legislation for these other groups has never been interpreted as a legal basis for any type of secession from the United States. Further, a bedrock principle of federal law is that Congress has plenary power over Native governments. (see United States v Lara, 2004). Henee, a legal matter, secession would only be possible if Congress enacted specific language allowing it. Longstanding federal precedent counsels that secession, except through consent of the states or through revolution, is unconstitutional. 9/48 Li

Haunani Apoliona, MSW Trustee, At-large