Ka Wai Ola - Office of Hawaiian Affairs, Volume 22, Number 10, 1 October 2005 — Justice's constitutional concerns won't stop bill, Akaka says [ARTICLE]
Justice's constitutional concerns won't stop bill, Akaka says
By Sterling Kini Weng Publications Editor As Hawai'i's senators were working with Senate leaders in late September to schedule a vote on a newly amended version of the Akaka Bill, the federal Department of Iustice issued a surprise statement outlining concerns over the bill's constitutionality. In response, the bill's primary sponsor, Sen. Daniel Akaka, said he believes the bill will be deemed constitutional by the courts if it passes, and that he will eonhnue to press for a vote on the issue. "I believe firmly in Congress' authority to extend the federal policy of self-governance and self-detennination to Native Hawaiians," Akaka said in a written statement. "Although I realize and respect that there are those who have differing views, the bill is constitutional." The Justice Department's concerns are not new; they were also raised in a July letter the department sent to Sen. John McCain, chairman of the Senate Committee on Indian Affairs. However, Hawai'i's senators and Gov. Linda Lingle, who had previously announced an agreement with the Bush administration over amendments to the bill, were taken by surprise on Sept. 21, when Justice Department spokesman John Nowaeki told two Hawai'i reporters that his department still has "substantial, unresolved constitutional concerns" about the bill. Nowaeki pointed to the Supreme Court's statement in the Rice v. Cayetano case that it is "a matter of some
dispute" whether Congress may treat Native Hawaiians as it does Indian tribes. In response, Rep. Ed Case said that, as the legal ann of the federal govermnent, the Justice Department is just being cautious. "It is the courts, not the Department of Justice, that says what is constitutional," Case said. "Since there's no doubt opponents of federal recognition will litigate this issue, assuming [the Akaka Bill] passes, the question should and will eventually be settled by the courts." Akaka offers amendments Justice's statement eame at a point when Hawai'i's congressional delegation and state administration had just finished discussions with the department and other federal officials to work out the Bush administration's policy concerns over the bill. Several amendments were born out of those discussions, including a eontroversial one that prohibits Native Hawaiians from suing the U.S. for any land claims. Instead, the amendment states that Native Hawaiian land claims must be settled during the negotiations process between the Native Hawaiian governing entity, and the federal and state governments. (See analysis by Charles Wilkinson.) In a press release announcing the amendments on Sept. 16, Akaka said that the bill's new language on land claims represents a eompromise between the administration's desire to
limit the liability of the federal government and the Hawai'i senators' belief that the measure should not settle or extinguish any claims. "I have always said that longstanding issues, including land claims, were to be addressed in the process of reconciliation - an ongoing dialogue between Native Hawaiians and the United States," Akaka said. "While I have always sought to protect any claims that may exist, it has never been my intent that this bill be used to create a elaim against the United States." Other amendments addressed the administration's concerns about the Akaka Bill's impact on military readiness, gaming and criminal jurisdiction (see sidebar). Congressman Neil Abercrombie said that the new amendments address the administration's key concerns about the bill. "For the bill's prospects in the House, the only question now is whether the president will give his unambiguous endorsement," he said. "That will put the goal of Native Hawaiian recognition within reach." Sen. Daniel Inouye added that the amendments mark a "significant milestone along the road to federal recognition of Native Hawaiians." Senators had been scheduled to take a procedural vote on Sept. 6 that would force a debate and final vote on the bill. However, that vote was postponed indefinitely due to the emergency created by Hurricane Katrina and the confirmation hearings for Supreme Court Justice nominee John Roberts. Gov. Linda Lingle told loeal media recently that she heard that the Senate could debate the Akaka Bill as early as the last week of October, and said she might return to Washington to lobby for the measure. S
NŪ HOU • NEWS
Akaka amendments The Department of Justice's policy issue concerns and the amendments that address them include: Claims - amendment prohibits Native Hawaiians from suing the federal government for breach of trust, land and other claims. Instead, these claims may be resolved in the negotiations process between the Native Hawaiian governing entity and federal and state governments. Military readiness - amendment exempts the Department of Defense from the required consultations between federal agencies and the Native Hawaiian governing entity. Gaming - amendment prohibits gaming by the Native Hawaiian governing entity under any federal law in Hawai'i or in any other state or territory. Criminal jurisdiction - amendment clarifies that civil and criminal jurisdiction currently held by the state and federal governments will remain with those bodies unless otherwise negotiated with the Native Hawaiian governing entity. For more detail on the amendments, visit akaka.senate.gov.