Ka Wai Ola - Office of Hawaiian Affairs, Volume 22, Number 10, 1 ʻOkakopa 2005 — Resolution of claims throueh neeotiations could be better than courts [ARTICLE+ILLUSTRATION]

Resolution of claims throueh neeotiations could be better than courts

Analysis by Charles Wilkinsan

After six long years - and many years of preparation before that - the Akaka Bill is finally on the cusp of passage. Negotiations of the past few weeks among the Hawaiian eongressional delegation, the state of Hawai'i and Bush administration officials have resulted in amendments that are technical in nature,

but, because of the importance of the legislation, deserve to be looked at closely. The principal additions have to do with land and money claims by the new Hawaiian government. The key to grasping these matters is an understanding of sovereign iimnunity. This ancient - and outmoded - doctrine comes from 01d England. Because, it was reasoned back then, "the King ean do no wrong," a sovereign cannot be sued unless it gives its consent. When the United States broke away from England, it kept many elements of British law, including the doctrine of sovereign iimnunity. Right or wrong, the rule remains in effect today. The United States and the state of

Hawai'i (and native governments) cannot be sued unless they agree to be sued. This applies to matters large and small, from a major land elaim to a fender-bender caused by a government driver. Obviously, the immunity doctrine ean easily cause unfairness. Congress and state legislatures have authorized waivers of their iimnunity that cover many different kinds of injuries the governments or their employees cause. But sovereign immunity has never been waived outright. In particular, waivers involving federal and state lands have been few and narrow. Therefore, in the kind of twists and turns that the law sometimes takes, it is possible to have an entirely valid elaim against a

government — except that no lawsuit ean be brought because the government has not waived its sovereign iimnunity. Before the Akaka Bill was introduced, there were no sovereign immunity waivers that applied to damages caused by the overthrow and other historic events. For example, when Congress apologized for the overthrow, there was no waiver of sovereign iimnunity that would allow suits to be brought. From the beginning, the Akaka Bill was neutral on claims. The delegation knew that it would not be politically possible to create new claims — and a large and unknown federal financial liability — by waiving federal sovereignty. On the other hand, the

delegation and the state were adamant that it would be immoral to extinguish claims that would be valid except for sovereign iinmunity. That didn't stop opponents of Native Hawaiians, including some administration members, from attempting to extinguish Native Hawaiian claims. Recently, they made another push to put extinguishment language in the bill. The delegation and state held firm. Although the administration insisted on additional verbiage in Section 8, in the end there is no change on immunity. The key phrase is that the federal government and the state eaeh "retain" their existing sovereignty iinmuSee WILKINS0N on page 27

Editor's note: Charles Wūkinson is a distinguished professor of law at the University of Colorado and

an expert in lndian and constituūonal law who has been advising OHA on legal issues related to the Akaka Bill.

Wilkinson

Cūntinued fram page G nity. There is no extinguishment of claims provision, or language that could be so construed. In short, the situation remains the same as before the Akaka Bill was introduced, the same as it has been throughout the legislative process. Further, the recent amendments include provisions beneficial to Native Hawaiians. After the hill is signed into law, the Native Hawaiian, state, and federal governments will engage in far-ranging negotiations over sovereignty, reparations, and other issues. Section

8 now expressly provides that these negotiations will include "grievances regarding assertions of historical wrongs coimnitted against Native Hawaiians by the United States or by the State of Hawaii." This provision is a pointed reminder that Native Hawaiians have been wronged, by the overthrow and otherwise, and that a valid elaim remains even though sovereign immunity bars court action. It is reasonable to expect that the Native Hawaiian government will seek and will receive the Hawaiian Home Lands; the assets of the Office of Hawaiian Affairs, with an estimated worth of approximately $350 million; perhaps some of the ceded lands now under government control;

and money damages. The "historical wrongs" language just added to the hill should further that expectation. Basically, then, the Akaka Bill continues the status quo that court claims are barred by sovereign iimnunity, but the legislation will create a promising new forum for redress — the negotiations among the three governments. This may end up being better than the courts. The truth is that, while some mainland tribes have achieved some satisfaction in various claims processes, the court cases have also brought many frustrations. Among other things, most have dragged on for decades and many have cost millions. When tribes did reach

good results, they occurred at negotiating tables. Native Hawaiians are wellpositioned to make progress after the hill becomes law. The United States is likely to defer to the state on many issues. While all native groups wish for mueh more than they receive from the dominant society, the State of Hawai'i has been a valuable ally throughout this process - and generally has been more receptive to Native rights over the years than any other state. Most importantly, Native Hawaiians will be able to present a compelling case. The leadership is strong and native people on all the Islands are determined to achieve real self-determina-tion, real justice. E3