Grading Dan Akaka's Term Paper: Red-Pencil Comments and Corrections

As a former professor I was accustomed to marking the term papers my students submitted. I would use a red pencil to write comments in the margins or between the lines. And at the end, I would assign a grade ranging from A (excellent) to F (hopeless failure).

Dan Akaka's term paper was submitted late, on July 20, 2000. Dan seems worried that he might fail, and with good reason. He circulated several drafts among his friends, but seemed reluctant to accept criticism from those who do not understand or who may disagree with his findings. He was given the freedom to get help from as many people as possible; but he talked only with his best buddies, most of whom seem woefully ignorant of the subject matter. Those earlier drafts came to my attention only after they were published in the newspaper.

On July 20 the final version of the Akaka bill was introduced into Congress in both the Senate and the House. In the Senate, it was given bill number S2899 and introduced by Senator Dan Akaka. In the House, it was given bill number HR 4904 and introduced by Representative Neil Abercrombie. Anyone writing to Congress to oppose these bills should mention the appropriate bill number. For information on which committees are currently considering the bill, and how to contact appropriate members of Congress, please contact me at my e-mail address posted at the end of every section of this website.

Listed below are ways to obtain the full text of the Akaka bill as it was submitted to Congress, and some newspaper commentaries on it. Following that is a copy of the speech given by Senator Akaka at the time he introduced the bill into the Senate. Finally, the complete text of the bill is provided, along with my red-pencil comments and corrections at appropriate places on Danny’s term paper.

The bill itself can be downloaded in PDF format by clicking on

http://209.84.157.248/hawnbill.pdf

Without using the pdf format, the bill can also be viewed (and copied) by typing the bill number (either one) into the small "search" window at the Library of Congress "Thomas" website at

http://thomas.loc.gov

Newspaper articles describing the bill and giving comments from Hawai'i residents were published in both the Honolulu Advertiser and the Honolulu Star-Bulletin on July 21, 2000. Here are those newspaper articles.

http://the.honoluluadvertiser.com/2000/Jul/21/localnews1.html

http://starbulletin.com/2000/07/21/news/story2.html

Now that Dan has finally turned in his official paper, I am giving it an A for style, because it is quite well written, and the spelling seems correct. But he gets an F for content because there are many false statements and misleading half-truths; and the whole concept is morally repugnant. If the paper were submitted in an introductory course he would therefore receive a "gentleman's C" -- the grade generous professors sometimes gave to friendly students who made a sincere effort but just couldn't measure up to expectations. However, since this course is at the advanced graduate level, style is automatically assumed to be excellent, and the only grade is for content. Perhaps Dan should try a different career like going to work only for his buddies. But isn't that what he is already doing?

FIRST, HERE IS THE SHORT SPEECH GIVEN BY SENATOR AKAKA WHEN HE INTRODUCED HIS BILL. HE GETS HIGH STYLE MARKS FOR MAKING THE OTHER SENATORS FEEL SORRY FOR NATIVE HAWAIIANS, AND LEADING THEM TO BELIEVE THAT THIS BILL IS MERELY A WAY TO CORRECT SOME OVERSIGHTS AND TO SET THINGS RIGHT.

Mr. AKAKA. Mr. President, I stand before you today to introduce a bill on behalf of myself and my dear friend and colleague, Senator Inouye, that is of great significance to the indigenous peoples of Hawaii--the Native Hawaiians. This measure clarifies the political relationship between Native Hawaiians and the United States. For years, Congress has legislated on behalf of Native Hawaiians as the aboriginal, indigenous, native peoples of Hawaii. This measure clarifies that political relationship and provides a process for Native Hawaiians to form a Native Hawaiian governing body to engage in a government-to-government relationship with the United States.

The United States has declared a special responsibility for the welfare of the Native peoples of the United States, including Native Hawaiians. This relationship has been acknowledged by the United States since the inception of Hawaii's status as a territory. This relationship was most explicitly affirmed by the enactment of the Hawaiian Homes Commission Act of 1920, which set aside 200,000 acres of land in Hawaii for homesteading by Native Hawaiians. Legislative history clearly shows that in addressing this situation, Congress based this action and subsequent legislation on the constitutional precedent in programs enacted for the benefit of American Indians.

Since Hawaii's admission into the Union, Congress has continued to legislate on behalf of Native Hawaiians as indigenous peoples. Native Hawaiians have been included as Native Americans in a number of federal statutes which have addressed the conditions of Native Hawaiians. This political relationship has been discussed within the Native Hawaiian community for many, many years. A large portion of the discussion has centered around the history of Hawaii's indigenous peoples and the United States' role in that history.

In 1993, Congress passed P.L. 103-150, the Apology Resolution, which extended an apology on behalf of the United States to the Native people of Hawaii for the United States' role in the overthrow of the Kingdom of Hawaii. The Apology Resolution also expressed the commitment of Congress and the President to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation efforts between the United States and Native Hawaiians. The process of reconciliation is ongoing.

Mr. President, this legislation is important not only to Native Hawaiians, but also to all people in Hawaii. This measure provides the process to begin resolving many longstanding issues facing Hawaii's indigenous peoples and the State of Hawaii. In addressing these issues, we have begun a process of healing, a process of reconciliation not only with the United States but within the State of Hawaii. The essence of Hawaii is characterized not by the beauty of its islands, but by the beauty of its people. The State of Hawaii has recognized, acknowledged and acted upon the need to preserve the culture, tradition, language and heritage of Hawaii's indigenous peoples. This measure furthers these actions.

Mr. President, the clarification of the political relationship between Native Hawaiians and the United States is one that has been long in coming and is well-deserved. The history and the timing of Hawaii's admission to the United States, unfortunately, did not provide the appropriate structure for a government-to-government relationship between Hawaii's indigenous native peoples and the United States. The time has come to correct this injustice.

NEXT, HERE IS SENATOR AKAKA’S BILL. THIS BILL WAS INTRODUCED ON JULY 20, 2000 IN BOTH THE SENATE (BY SENATOR AKAKA) AND THE HOUSE (BY REPRESENTATIVE NEIL ABERCROMBIE). IN THE SENATE, IT IS BILL # S2899. IN THE HOUSE, IT IS BILL # HR4904. RED-PENCIL COMMENTS AND CRITICISMS BY PROFESSOR CONKLIN ARE INSERTED WHERE APPROPRIATE.

A BILL

To express the policy of the United States regarding the United States relationship with Native Hawaiians, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. FINDINGS.

Congress finds that--

(1) the Constitution vests Congress with the authority to address the conditions of the indigenous, native people of the United States;

This is false. The Constitution never uses the word “indigenous.” The Constitution does not recognize native people or Indians as individuals or generically -- the Constitution only recognizes tribes of Indians because they are already existing as separate and distinct political entities.

(2) Native Hawaiians, the native people of the State of Hawaii are indigenous, native people of the United States;

Native Hawaiians are less indigenous to Hawai’i than the people of England are indigenous to England. Every racial group in Hawai’i immigrated to Hawai’i from elsewhere, no longer than about 1700 years ago.

(3) the United States has a special trust relationship to promote the welfare of the native people of the United States, including Native Hawaiians;

There is no trust relationship between the United States and the race of Native Hawaiians. There is a trust relationship between the U.S. and all the people of Hawai’i as set forth in the Annexation and Statehood acts regarding the “ceded” lands.

(4) under the treaty-making power of the United States, Congress exercised its constitutional authority to confirm a treaty between the United States and the government that represented the Hawaiian people, and from 1826 until 1893, the United States recognized the independence of the Kingdom of Hawaii, extended full diplomatic recognition to the Hawaiian Government, and entered into treaties and conventions with the Hawaiian monarchs to govern commerce and navigation in 1826, 1842, 1849, 1875, and 1887;

The treaties of the United States were not with the race of Native Hawaiians. The treaties were with the Kingdom of Hawai’i. By the time of the overthrow of the monarchy in 1893, only a 40% minority of the population had any native blood. Thousands of Japanese, Chinese, and Euro-American immigrants had full and equal voting rights and property rights in the Kingdom; and their children, born in Hawai’i, were native-born subjects of the Kingdom equal to the Native Hawaiians. Most high government officials of the Kingdom had no native blood.

(5) pursuant to the provisions of the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42), the United States set aside 200,000 acres of land in the Federal territory that later became the State of Hawaii in order to establish a homeland for the native people of Hawaii, Native Hawaiians;

The Hawaiian Homes Commission Act was probably unconstitutional, and may yet be ruled unconstitutional as a result of the Rice v. Cayetano decision in which the Supreme Court identifies “Native Hawaiian” as a racial classification.

(6) by setting aside 200,000 acres of land for Native Hawaiian homesteads and farms, the Act assists the Native Hawaiian community in maintaining distinct native settlements throughout the State of Hawaii;

The U.S. has been very generous with this illegal program.

(7) approximately 6,800 Native Hawaiian lessees and their family members reside on Hawaiian Home Lands and approximately 18,000 Native Hawaiians who are eligible to reside on the Home Lands are on a waiting list to receive assignments of land;

Those on the waiting list have not received free land only because there are no roads or utilities on those lands. Native Hawaiians never had paved highways or electricity or piped water before modern times. Those who want free land could have had it all along, except that the officials of DHHL refused to offer it, and the clients refused to accept it, without free roads and utilities.

(8) the Hawaiian Home Lands continue to provide an important foundation for the ability of the Native Hawaiian community to maintain the practice of Native Hawaiian culture, language, and traditions, and Native Hawaiians have maintained other distinctly native areas in Hawaii;

Many other ethnic groups in Hawai’i maintain their cultural practices generation after generation without any governmental assistance or ethnically-defined housing areas.

(9) on November 23, 1993, Public Law 103-150 (107 Stat. 1510) (commonly known as the Apology Resolution) was enacted into law, extending an apology on behalf of the United States to the Native people of Hawaii for the United States role in the overthrow of the Kingdom of Hawaii;

The Apology Resolution was passed without public herarings or the opportunity for opponents to speak; and it was a simple resolution of sentiment to commemorate the 100th anniversary of an historic event.

(10) the Apology Resolution acknowledges that the overthrow of the Kingdom of Hawaii occurred with the active participation of agents and citizens of the United States and further acknowledges that the Native Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people over their national lands to the United States, either through their monarchy or through a plebiscite or referendum;

The monarchy was overthrown primarily by local residents and citizens of the Kingdom of Hawai’i. The U.S. is not responsible for what its citizens do when living abroad. There were Native Hawaiians and non-natives on both sides of the revolution. The losers in a revolution seldom take a vote on whether to surrender, and seldom sign over control to the winners. Furthermore, the non-natives who comprised most of the high government officials were victims of the revolution every bit as much as those natives who supported the monarchy.

(11) the Apology Resolution expresses the commitment of Congress and the President to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation efforts between the United States and Native Hawaiians; and to have Congress and the President, through the President's designated officials, consult with Native Hawaiians on the reconciliation process as called for under the Apology Resolution;

Native Hawaiians are not separate or distinct from the rest of Hawai’i’s population. They are fully assimilated and intermarried; living, working and praying side by side with non-natives. Some Native Hawaiians do practice their traditional culture, just as other ethnic groups do.

and to give expression to their rights as native people to self-determination and self-governance as evidenced through their participation in the Office of Hawaiian Affairs;

The Office of Hawaiian Affairs was created in a spirit of generosity by the State of Hawai’i by a Constitutional Convention ratified by a vote open to the entire population, 80% of whom were non-native. OHA is not a tribal government, and has never exercised any significant authority over Native Hawaiians. Virtually all the educational, health, and welfare benefits received by Native Hawaiians come through ordinary agencies of the state government which all citizens participate in.

(13) Native Hawaiians also maintain a distinct Native Hawaiian community through the provision of governmental services to Native Hawaiians, including the provision of health care services, educational programs, employment and training programs, children's services, conservation programs, fish and wildlife protection, agricultural programs, native language immersion programs and native language immersion schools from kindergarten through high school, as well as college and master's degree programs in native language immersion instruction, and traditional justice programs, and by continuing their efforts to enhance Native Hawaiian self-determination and local control;

Government programs have been very generous to Native Hawaiians. Those programs which are racially restricted to Native Hawaiians are unconstitutional.

(14) Native Hawaiians are actively engaged in Native Hawaiian cultural practices, traditional agricultural methods, fishing and subsistence practices, maintenance of cultural use areas and sacred sites, protection of burial sites, and the exercise of their traditional rights to gather medicinal plants and herbs, and food sources;

Relatively few Native Hawaiians engage in these practices; and those who do have generally chosen such activities as hobbies or for personal enjoyment rather than as routine daily subsistence activities essential to their survival. Many people of all ethnicities enjoy “back to nature” hobbies or “back to my roots” ethnic activities.

(15) the Native Hawaiian people wish to preserve, develop, and transmit to future Native Hawaiian generations their ancestral lands and Native Hawaiian political and cultural identity in accordance with their traditions, beliefs, customs and practices, language, and social and political institutions, and to achieve greater self-determination over their own affairs;

Every ethnic group does these things.

(16) this Act responds to the desire of the Native Hawaiian people for enhanced self-determination by establishing a process within the framework of Federal law for the Native Hawaiian people to exercise their inherent rights as a distinct aboriginal, indigenous, native community to reorganize a Native Hawaiian governing body for the purpose of giving expression to their rights as native people to self-determination and self-governance;

Saying these things over and over and over does not make them true.

(17) the United States has declared that--

(A) the United States has a special responsibility for the welfare of the native peoples of the United States, including Native Hawaiians;

(B) Congress has identified Native Hawaiians as a distinct indigenous group within the scope of its Indian affairs power, and has enacted dozens of statutes on their behalf pursuant to its recognized trust responsibility; and

Congress has been very generous, although racial entitlement programs are unconstitutional.

(C) Congress has also delegated broad authority to administer a portion of the federal trust responsibility to the State of Hawaii;

The U.S. Supreme Court in Rice v. Cayetano specifically stated that it is doubtful whether Congress has the authority to delegate a federal trust responsibility to a state.

(18) the United States has recognized and reaffirmed the special trust relationship with the Native Hawaiian people through--

(A) the enactment of the Act entitled `An Act to provide for the admission of the State of Hawaii into the Union', approved March 18, 1959 (Public Law 86-3; 73 Stat. 4) by--

(i) ceding to the State of Hawaii title to the public lands formerly held by the United States, and mandating that those lands be held in public trust for the betterment of the conditions of Native Hawaiians; and

The trust responsibility was to all the people of Hawai’i. There were five purposes given as examples of what the ceded land revenues might be used for and “betterment of the conditions of Native Hawaiians” was only one of them. The government is specifically instructed to spend ceded land revenues for any one or more of those five purposes. For the first 20 years of statehood, virtually all the ceded land revenue was spent for public education, which did benefit Native Hawaiians since about 25% of the public school children are Native Hawaiian.

(ii) transferring the United States responsibility for the administration of the Hawaiian Home Lands to the State of Hawaii, but retaining the authority to enforce the trust, including the exclusive right of the United States to consent to any actions affecting the lands which comprise the corpus of the trust and any amendments to the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42) that are enacted by the legislature of the State of Hawaii affecting the beneficiaries under the Act;

All states are admitted to the Union on an equal footing, and such conditions of admission are unenforceable since the only remedy for a breach is to throw the offending state out of the union or take over the operation of the state government.

(19) the United States continually has recognized and reaffirmed that--

(A) Native Hawaiians have a cultural, historic, and land-based link to the aboriginal, native people who exercised sovereignty over the Hawaiian Islands;

Many non-native citizens of Hawai’i of Asian and Euro-American ancestry have a multi-generation cultural, historical, and land-based link to the land of Hawai’i and to their own ancestors who were full and equal citizens of the Kingdom of Hawai’i and exercised sovereignty as part of a democratic government.

(B) Native Hawaiians have never relinquished their claims to sovereignty or their sovereign lands;

Neither have the 60% of the residents of the Kingdom who had no native blood, nor their currently-living descendants.

(C) the United States extends services to Native Hawaiians because of their unique status as the aboriginal, native people of a once sovereign nation with whom the United States has a political and legal relationship; and

(D) the special trust relationship of American Indians, Alaska Natives, and Native Hawaiians to the United States arises out of their status as aboriginal, indigenous, native people of the United States.

Danny, we have gone over and over these same points many times already. Repeating false assertions will not make them come true.

SEC. 2. DEFINITIONS.

In this Act:

(1) ABORIGINAL, INDIGENOUS, NATIVE PEOPLE- The term `aboriginal, indigenous, native people' means those people whom Congress has recognized as the original inhabitants of the lands and who exercised sovereignty prior to European contact in the areas that later became part of the United States;

(2) ADULT MEMBERS- The term `adult members' means those Native Hawaiians who have attained the age of 18 at the time the Secretary publishes the initial roll in the Federal Register, as provided in section 7(a)(4) of this Act.

(3) APOLOGY RESOLUTION- The term `Apology Resolution' means Public Law 103-150 (107 Stat. 1510), a joint resolution offering an apology to Native Hawaiians on behalf of the United States for the participation of agents of the United States in the January 17, 1893 overthrow of the Kingdom of Hawaii.

(4) COMMISSION- The term `Commission' means the commission established in section 7 of this Act to certify that the adult members of the Native Hawaiian community contained on the roll developed under that section meet the definition of Native Hawaiian, as defined in paragraph (6)(A).

(5) INDIGENOUS, NATIVE PEOPLE- The term `indigenous, native people' means the lineal descendants of the aboriginal, indigenous, native people of the United States.

(6) NATIVE HAWAIIAN-

(A) Prior to the recognition by the United States of a Native Hawaiian governing body under the authority of section 7(d) of this Act, the term `Native Hawaiian' means the indigenous, native people of Hawaii who are the lineal descendants of the aboriginal, indigenous, native people who resided in the islands that now comprise the State of Hawaii on January 1, 1893, and who occupied and exercised sovereignty in the Hawaiian archipelago, including the area that now constitutes the State of Hawaii, as evidenced by (but not limited to)--

(i) genealogical records;

(ii) Native Hawaiian kupuna (elders) verification or affidavits;

(iii) church or census records; or

(iv) government birth or death certificates or other vital statistics records;

(B) Following the recognition by the United States of the Native Hawaiian governing body under section 7(d) of this Act, the term `Native Hawaiian' shall have the meaning given to such term in the organic governing documents of the Native Hawaiian governing body.

(7) NATIVE HAWAIIAN GOVERNING BODY- The term `Native Hawaiian governing body' means the adult members of the governing body of the Native Hawaiian people that is recognized by the United States under the authority of section 7(d) of this Act.

(8) NATIVE HAWAIIAN INTERIM GOVERNING COUNCIL- The term `Native Hawaiian Interim Governing Council' means the interim governing council that is authorized to exercise the powers and authorities recognized in section 7(b) of this Act.

(9) ROLL- The term `roll' means the roll that is developed under the authority of section 7(a) of this Act.

(10) SECRETARY- The term `Secretary' means the Secretary of the Department of the Interior.

(11) TASK FORCE- The term `Task Force' means the Native Hawaiian Interagency Task Force established under the authority of section 6 of this Act.

Danny, you may define your terms however you wish.

SEC. 3. UNITED STATES POLICY.

The United States reaffirms that--

(1) Native Hawaiians are a unique and distinct aboriginal, indigenous, native people, with whom the United States has a political and legal relationship;

(2) the United States has a special trust relationship to promote the welfare of Native Hawaiians;

(3) Congress possesses the authority under the Constitution to enact legislation to address the conditions of Native Hawaiians and has exercised this authority through the enactment of--

(A) the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42);

(B) the Act entitled `An Act to provide for the admission of the State of Hawaii into the Union', approved March 18, 1959 (Public Law 86-3; 73 Stat. 4); and

(4) Native Hawaiians have--

(A) an inherent right to autonomy in their internal affairs;

(B) an inherent right of self-determination and self-governance; and

(5) the United States shall continue to engage in a process of reconciliation and political relations with the Native Hawaiian people.

All of section 3 looks very familiar. Danny, we have gone over and over these same points many times already. Repeating false assertions will not make them come true. But if you click your heels three times you might end up in Kansas.

DANNY, EVERYTHING FROM THIS POINT ON IS OF NO PARTICULAR INTEREST, BECAUSE YOU ARE SIMPLY SPINNING OUT THE DETAILS OF YOUR FAIRY-TALE NATION. YOU ARE FREE TO CONSTRUCT YOUR MAKE-BELIEVE TRIBE HOWEVER YOU WISH. IF PEOPLE DECIDE TO SIGN UP FOR IT, THEY WILL THEN BE BOUND BY THE RULES YOU SET FORTH.

ONE THING IS VERY CLEAR FROM THE REMAINING TWO-THIRDS OF THIS ESSAY. YOU ARE CREATING A POLITICAL ENTITY THAT DOES NOT YET EXIST. YOU WANT THE UNITED STATES GOVERNMENT TO FIRST RECOGNIZE AN INDIAN TRIBE THAT HAS NEVER EXISTED AND DOES NOT NOW EXIST, AND THEN YOU PROVIDE A PROCEDURE FOR GETTING PEOPLE TO ENROLL IN THAT TRIBE AFTERWARD. THIS IS REALLY BASS-ACKWARDS DANNY.

I HAVE NO FURTHER COMMENTS. ENJOY YOUR DREAMS WHILE THEY LAST, BECAUSE YOU ARE DUE FOR A RUDE AWAKENING. ALOHA, AND BEST WISHES FOR A SUCCESSFUL NEW CAREER.

SEC. 4. ESTABLISHMENT OF THE OFFICE OF SPECIAL TRUSTEE FOR NATIVE HAWAIIAN AFFAIRS.

(a) IN GENERAL- There is established within the Office of the Secretary of the Department of the Interior the Office of Special Trustee for Native Hawaiian Affairs.

(b) DUTIES OF THE OFFICE- The Office of Special Trustee for Native Hawaiian Affairs shall--

(1) effectuate and coordinate the special trust relationship between the Native Hawaiian people and the United States through the Secretary, and with all other Federal agencies;

(2) upon the recognition of the Native Hawaiian governing body by the United States as provided for in section 7(d) of this Act, effectuate and coordinate the special trust relationship between the Native Hawaiian governing body and the United States through the Secretary, and with all other Federal agencies;

(3) fully integrate the principle and practice of meaningful, regular, and appropriate consultation with the Native Hawaiian people by providing timely notice to, and consulting with the Native Hawaiian people prior to taking any actions that may have the potential to significantly or uniquely affect Native Hawaiian resources, rights, or lands, and upon the recognition of the Native Hawaiian governing body as provided for in section 7(d) of this Act, fully integrate the principle and practice of meaningful, regular, and appropriate consultation with the Native Hawaiian governing body by providing timely notice to, and consulting with the Native Hawaiian people prior to taking any actions that may have the potential to significantly affect Native Hawaiian resources, rights, or lands;

(4) consult with the Native Hawaiian Interagency Task Force, other Federal agencies, and with relevant agencies of the State of Hawaii on policies, practices, and proposed actions affecting Native Hawaiian resources, rights, or lands;

(5) be responsible for the preparation and submittal to the Committee on Indian Affairs of the Senate, the Committee on Energy and Natural Resources of the Senate, and the Committee on Resources of the House of Representatives of an annual report detailing the activities of the Interagency Task Force established under section 6 of this Act that are undertaken with respect to the continuing process of reconciliation and to effect meaningful consultation with the Native Hawaiian people and the Native Hawaiian governing body and providing recommendations for any necessary changes to existing Federal statutes or regulations promulgated under the authority of Federal law;

(6) be responsible for continuing the process of reconciliation with the Native Hawaiian people, and upon the recognition of the Native Hawaiian governing body by the United States as provided for in section 7(d) of this Act, be responsible for continuing the process of reconciliation with the Native Hawaiian governing body; and

(7) assist the Native Hawaiian people in facilitating a process for self-determination, including but not limited to the provision of technical assistance in the development of the roll under section 7(a) of this Act, the organization of the Native Hawaiian Interim Governing Council as provided for in section 7(b) of this Act, and the reorganization of the Native Hawaiian governing body as provided for in section 7(c) of this Act.

SEC. 5. DESIGNATION OF DEPARTMENT OF JUSTICE REPRESENTATIVE.

The Attorney General shall designate an appropriate official within the Department of Justice to assist the Office of the Special Trustee for Native Hawaiian Affairs in the implementation and protection of the rights of Native Hawaiians and their political and legal relationship with the United States, and upon the recognition of the Native Hawaiian governing body as provided for in section 7(d) of this Act, in the implementation and protection of the rights of the Native Hawaiian governing body and its political and legal relationship with the United States.

SEC. 6. NATIVE HAWAIIAN INTERAGENCY TASK FORCE.

(a) ESTABLISHMENT- There is established an interagency task force to be known as the `Native Hawaiian Interagency Task Force'.

(b) COMPOSITION- The Task Force shall be composed of officials, to be appointed by the President, from--

(1) each Federal agency that establishes or implements policies that affect Native Hawaiians or whose actions may significantly or uniquely impact on Native Hawaiian resources, rights, or lands;

(2) the Office of the Special Trustee for Native Hawaiian Affairs established under section 4 of this Act; and

(3) the Executive Office of the President.

(c) LEAD AGENCIES- The Department of the Interior and the Department of Justice shall serve as the lead agencies of the Task Force, and meetings of the Task Force shall be convened at the request of the lead agencies.

(d) CO-CHAIRS- The Task Force representative of the Office of Special Trustee for Native Hawaiian Affairs established under the authority of section 4 of this Act and the Attorney General's designee under the authority of section 5 of this Act shall serve as co-chairs of the Task Force.

(e) DUTIES- The primary responsibilities of the Task Force shall be--

(1) the coordination of Federal policies that affect Native Hawaiians or actions by any agency or agencies of the Federal Government which may significantly or uniquely impact on Native Hawaiian resources, rights, or lands;

(2) to assure that each Federal agency develops a policy on consultation with the Native Hawaiian people, and upon recognition of the Native Hawaiian governing body by the United States as provided in section 7(d) of this Act, consultation with the Native Hawaiian governing body; and

(3) to assure the participation of each Federal agency in the development of the report to Congress authorized in section 4(b)(5) of this Act.

SEC. 7. PROCESS FOR THE DEVELOPMENT OF A ROLL FOR THE ORGANIZATION OF A NATIVE HAWAIIAN INTERIM GOVERNING COUNCIL, FOR THE ORGANIZATION OF A NATIVE HAWAIIAN INTERIM GOVERNING COUNCIL AND A NATIVE HAWAIIAN GOVERNING BODY, AND FOR THE RECOGNITION OF THE NATIVE HAWAIIAN GOVERNING BODY.

(a) ROLL-

(1) PREPARATION OF ROLL- The adult members of the Native Hawaiian community who wish to participate in the reorganization of a Native Hawaiian governing body shall prepare a roll for the purpose of the organization of a Native Hawaiian Interim Governing Council. The roll shall include the names of--

(A) the adult members of the Native Hawaiian community who wish to become members of a Native Hawaiian governing body and

who are the lineal descendants of the aboriginal, indigenous, native people who resided in the islands that now comprise the State of Hawaii on January 1, 1893, and who occupied and exercised sovereignty in the Hawaiian archipelago, including the area that now constitutes the State of Hawaii, as evidenced by (but not limited to)--

(i) genealogical records;

(ii) Native Hawaiian kupuna (elders) verification or affidavits;

(iii) church or census records; or

(iv) government birth or death certificates or other vital statistics records; and

(B) the children of the adult members listed on the roll prepared under this subsection.

(2) CERTIFICATION AND SUBMISSION-

(A) COMMISSION- There is authorized to be established a Commission to be composed of 9 members for the purpose of certifying that the adult members of the Native Hawaiian community on the roll meet the definition of Native Hawaiian, as defined in section 2(6)(A) of this Act. The members of the Commission shall have expertise in the certification of Native Hawaiian ancestry.

(B) CERTIFICATION- The Commission shall certify to the Secretary that the individuals listed on the roll developed under the authority of this subsection are Native Hawaiians, as defined in section 2(6)(A) of this Act, and shall submit such roll to the Secretary.

(3) NOTIFICATION- The Commission shall promptly provide notice to the Secretary if any of the individuals listed on the roll should be removed from the roll on account of death.

(4) PUBLICATION- Within 45 days of the receipt by the Secretary of the roll developed under the authority of this subsection and certified by the Commission under the authority of paragraph (2), the Secretary shall certify that the roll is consistent with applicable Federal law by publishing the roll in the Federal Register.

(5) EFFECT OF PUBLICATION- The publication of the roll developed under the authority of this subsection shall be for the purpose of providing any member of the public with an opportunity to--

(A) petition the Secretary to add to the roll the name of an individual who meets the definition of Native Hawaiian, as defined in section 2(6)(A) of this Act, and who is not listed on the roll; or

(B) petition the Secretary to remove from the roll the name of an individual who does not meet such definition.

(6) DEADLINE FOR PETITIONS- Any petition described in paragraph (5) shall be filed with the Secretary within 90 days of the date of the publication of the roll in the Federal Register, as authorized under paragraph (4).

(7) CERTIFICATION OF ADDITIONAL NATIVE HAWAIIANS FOR INCLUSION ON THE ROLL-

(A) SUBMISSION- Within 30 days of receiving a petition to add the name of an individual to the roll, the Secretary shall submit the name of each individual who is the subject of a petition to add his or her name to the roll to the Commission for certification that the individual meets the definition of Native Hawaiian, as defined in section 2(6)(A) of this Act.

(B) CERTIFICATION- Within 30 days of receiving a petition from the Secretary to have a name added to or removed from the roll, the Commission shall certify to the Secretary that--

(i) the individual meets the definition of Native Hawaiian, as defined in section 2(6)(A) of this Act; or

(ii) the individual does not meet the definition of Native Hawaiian, as so defined.

Upon such certification, the Secretary shall add or remove the name of the individual on the roll, as appropriate.

(8) HEARING-

(A) IN GENERAL- The Secretary shall conduct a hearing on the record within 45 days of the receipt by the Secretary of--

(i) a certification by the Commission that an individual does not meet the definition of Native Hawaiian, as defined in section 2(6)(A) of this Act; or

(ii) a petition to remove the name of any individual listed on the roll submitted to the Secretary by the Commission.

(B) TESTIMONY- At the hearing conducted in accordance with this paragraph, the Secretary may receive testimony from the petitioner, a representative of the Commission, the individual whose name is the subject of the petition, and any other individuals who may have the necessary expertise to provide the Secretary with relevant information regarding whether the individual whose name is the subject of a petition meets the definition of Native Hawaiian, as defined in section 2(6)(A) of this Act.

(C) FINAL DETERMINATION- Within 30 days of the date of the conclusion of the hearing conducted in accordance with this paragraph, the Secretary shall make a determination regarding whether the individual whose name is the subject of a petition meets the definition of Native Hawaiian, as defined in section 2(6)(A) of this Act. Such a determination shall be a final determination for purposes of judicial review.

(9) JUDICIAL REVIEW-

(A) FINAL JUDGMENT- The United States District Court for the District of Hawaii shall have jurisdiction to review the record of the decision developed by the Secretary and the Secretary's final determination under paragraph (8) and shall make a final judgment regarding such determination.

(B) NOTICE- If the district court determines that an individual's name should be added to the roll because that individual meets the definition of Native Hawaiian, as defined in section 2(6)(A) of this Act, or that an individual's name should be removed from the roll because that individual does not meet such definition, the district court shall so advise the Secretary and the Secretary shall add or remove the individual's name from the roll, consistent with the instructions of the district court.

(10) PUBLICATION OF FINAL ROLL- Except for those petitions which remain the subject of judicial review under the authority of paragraph (9), the Secretary shall--

(A) publish a final roll in the Federal Register within 290 days of the receipt by the Secretary of the roll prepared under the authority of paragraph (1); and

(B) subsequently publish in the Federal Register the names of any individuals that the district court directs be added or removed from the roll.

(11) EFFECT OF PUBLICATION- The publication of the final roll shall serve as the basis for the eligibility of adult members listed on the roll to participate in all referenda and elections associated with the organization of a Native Hawaiian Interim Governing Council.

(b) ORGANIZATION OF THE NATIVE HAWAIIAN INTERIM GOVERNING COUNCIL-

(1) ORGANIZATION-

(A) DATE OF GENERAL MEETING- Within 90 days of the date of the publication of the final roll in the Federal Register, the Secretary shall announce the date of a general meeting of the adult members of those listed on the roll to nominate candidates from among the adult members listed on the roll for election to the Native Hawaiian Interim Governing Council. The criteria for candidates to serve on the Native Hawaiian Interim Governing Council shall be developed by the adult members listed on the roll at the general meeting. The general meeting may consist of meetings on each island or at such sites as to secure the maximum participation of the adult members listed on the roll. Such general meeting (or meetings) shall be held within 30 days of the Secretary's announcement.

(B) ELECTION- Within 45 days of the general meeting (or meetings), the Secretary shall assist the Native Hawaiian community in holding an election by secret ballot (absentee and mail balloting permitted), to elect the membership of the Native Hawaiian Interim Governing Council from among the nominees submitted to the Secretary from the general meeting. The ballots shall provide for write-in votes.

(C) APPROVAL- The Secretary shall approve the Native Hawaiian Interim Governing Council elected pursuant to this subsection if the requirements of this section relating to the nominating and election process have been met.

(2) POWERS-

(A) IN GENERAL- The Native Hawaiian Interim Governing Council shall represent those on the roll in the implementation of this Act and shall have no powers other than those given to it in accordance with this Act.

(B) TERMINATION- The Native Hawaiian Interim Governing Council shall have no power or authority under this Act after the time which the duly elected officers of the Native Hawaiian governing body take office.

(3) DUTIES-

(A) REFERENDUM- The Native Hawaiian Interim Governing Council shall conduct a referendum of the adult members listed on the roll for the purpose of determining (but not limited to) the following:

(i) The proposed elements of the organic governing documents of a Native Hawaiian governing body.

(ii) The proposed powers and authorities to be exercised by a Native Hawaiian governing body, as well as the proposed privileges and immunities of a Native Hawaiian governing body.

(iii) The proposed civil rights and protection of such rights of the members of a Native Hawaiian governing body and all persons subject to the authority of a Native Hawaiian governing body.

(B) DEVELOPMENT OF ORGANIC GOVERNING DOCUMENTS- Based upon the referendum authorized in subparagraph (A), the Native Hawaiian Interim Governing Council shall develop proposed organic governing documents for a Native Hawaiian governing body.

(C) DISTRIBUTION- The Council shall distribute to all adult members of those listed on the roll, a copy of the proposed organic governing documents, as drafted by the Native Hawaiian Interim Governing Council, along with a brief impartial description of the proposed organic governing documents.

(D) CONSULTATION- The Native Hawaiian Interim Governing Council shall freely consult with those listed on the roll concerning the text and description of the proposed organic governing documents.

(4) ELECTIONS-

(A) IN GENERAL- Upon the request of the Native Hawaiian Interim Governing Council, the Secretary shall hold an election for the purpose of ratifying the proposed organic governing documents. If the Secretary fails to act within 45 days of the request by the Council, the Council is authorized to conduct the election.

(B) FAILURE TO ADOPT GOVERNING DOCUMENTS- If the proposed organic governing documents are not adopted by a majority vote of the adult members listed on the roll, the Native Hawaiian Interim Governing Council shall consult with the adult members listed on the roll to determine which elements of the proposed organic governing documents were found to be unacceptable, and based upon such consultation, the Council shall propose changes to the proposed organic governing documents.

(C) ELECTION- Upon the request of the Native Hawaiian Interim Governing Council, the Secretary shall hold a second election for the purpose of ratifying the proposed organic governing documents. If the Secretary fails to act within 45 days of the request by the Council, the Council is authorized to conduct the second election.

(1) RECOGNITION OF RIGHTS- The right of the Native Hawaiian governing body of the indigenous, native people of Hawaii to organize for its common welfare, and to adopt appropriate organic governing documents is hereby recognized by the United States.

(2) RATIFICATION- The organic governing documents of the Native Hawaiian governing body shall become effective when ratified by a majority vote of the adult members listed on the roll, and approved by the Secretary upon the Secretary's determination that the organic governing documents are consistent with applicable Federal law and the special trust relationship between the United States and its native people. If the Secretary fails to make such a determination within 45 days of the ratification of the organic governing documents by the adult members listed on the roll, the organic governing documents shall be deemed to have been approved by the Secretary.

(3) ELECTION OF GOVERNING OFFICERS- Within 45 days after the Secretary has approved the organic governing documents or the organic governing documents are deemed approved, the Secretary shall assist the Native Hawaiian Interim Governing Council in holding an election by secret ballot for the purpose of determining the individuals who will serve as governing body officers as provided in the organic governing documents.

(4) VOTING ELIGIBILITY- For the purpose of this initial election and notwithstanding any provision in the organic governing documents to the contrary, absentee balloting shall be permitted and all adult members of the Native Hawaiian governing body shall be entitled to vote in the election.

(5) FUTURE ELECTIONS- All further elections of governing body officers shall be conducted as provided for in the organic governing documents and ordinances adopted in accordance with this Act.

(6) REVOCATION; RATIFICATION OF AMENDMENTS- When ratified by a majority vote of the adult members of those listed on the roll, the organic governing documents shall be revocable by an election open to the adult members of the Native Hawaiian governing body, and amendments to the organic governing documents may be ratified by the same process.

(7) ADDITIONAL RIGHTS AND POWERS- In addition to all powers vested in the Native Hawaiian governing body by the duly ratified organic governing documents, the organic governing documents shall also vest in the Native Hawaiian governing body the rights and powers to--

(A) exercise those governmental authorities that are recognized by the United States as the powers and authorities that are exercised by other governments representing the indigenous, native people of the United States;

(B) provide for the protection of the civil rights of the members of the Native Hawaiian governing body and all persons subject to the authority of the Native Hawaiian governing body, and to assure that the Native Hawaiian governing body exercises its authority consistent with the requirements of section 202 of the Act of April 11, 1968 (25 U.S.C. 1302);

(C) prevent the sale, disposition, lease, or encumbrance of lands, interests in lands, or other assets of the Native Hawaiian governing body without the consent of the Native Hawaiian governing body;

(D) determine the membership in the Native Hawaiian governing body; and

(E) negotiate with Federal, State, and local governments, and other entities.

(d) FEDERAL RECOGNITION-

(1) RECOGNITION- Notwithstanding any other provision of law, upon the approval by the Secretary of the organic governing documents of the Native Hawaiian governing body and the election of officers of the Native Hawaiian governing body, Federal recognition is hereby extended to the Native Hawaiian governing body as the representative governing body of the Native Hawaiian people.

(2) NO DIMINISHMENT OF RIGHTS OR PRIVILEGES- Nothing contained in this Act shall diminish, alter, or amend any existing rights or privileges enjoyed by the Native Hawaiian people which are not inconsistent with the provisions of this Act.

(e) INCORPORATION OF THE NATIVE HAWAIIAN GOVERNING BODY-

(1) CHARTER OF INCORPORATION- Upon petition of the Native Hawaiian governing body, the Secretary may issue a charter of incorporation to the Native Hawaiian governing body. Upon the issuance of such charter of incorporation, the Native Hawaiian governing body shall have the same status under Federal law when acting in its corporate capacity as the status of Indian tribes that have been issued a charter of incorporation under the authority of section 17 of the Indian Reorganization Act (25 U.S.C. 477).

(2) ENUMERATED POWERS- Such charter may authorize the incorporated Native Hawaiian governing body to exercise the power to purchase, take by gift, bequest, or otherwise, own, hold, manage, operate, and dispose of property of every description, real and personal, including the power to purchase lands and to issue an exchange of interests in corporate property, and such further powers as may be incidental to the conduct of corporate business, and that are not inconsistent with law.

SEC. 8. AUTHORIZATION OF APPROPRIATIONS.

There is authorized to be appropriated such sums as may be necessary to carry out the activities authorized in sections 4, 6, and 7 of this Act.

SEC. 9. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY; NEGOTIATIONS.

(a) REAFFIRMATION- The delegation by the United States of authority to the State of Hawaii to address the conditions of Native Hawaiians contained in the Act entitled `An Act to provide for the admission of the State of Hawaii into the Union' approved March 18, 1959 (Public Law 86-3; 73 Stat. 5) is hereby reaffirmed.

(b) NEGOTIATIONS- Upon the Federal recognition of the Native Hawaiian governing body pursuant to section 7(d) of this Act, the United States is authorized to negotiate and enter into an agreement with the State of Hawaii and the Native Hawaiian governing body regarding the transfer of lands, resources, and assets dedicated to Native Hawaiian use under existing law as in effect on the date of enactment of this Act to the Native Hawaiian governing body.

SEC. 10. DISCLAIMER.

Nothing in this Act is intended to serve as a settlement of any claims against the United States.

SEC. 11. REGULATIONS.

The Secretary is authorized to make such rules and regulations and such delegations of authority as the Secretary deems necessary to carry out the provisions of this Act.

SEC. 12. SEVERABILITY.

In the event that any section or provision of this Act, or any amendment made by this Act is held invalid, it is the intent of Congress that the remaining sections or provisions of this Act, and the amendments made by this Act, shall continue in full force and effect.

END OF AKAKA BILL

================================

You may now

SEE MORE INFORMATION ABOUT THE AKAKA BILL

GO BACK TO OTHER TOPICS ON THIS WEBSITE

Email: ken_conklin@yahoo.com