Thursday, July 09, 2009


Testimony Of The Native Hawaiian Bar Association Before The House Committee On Natural Resources On The Akaka Bill, HR 2314, The Native Hawaiian Government Reorganization Act

June 11, 2009

Chairman Rahall, Ranking Member Hastings, and members of the committee:

As members of the Native Hawaiian Bar Association (NHBA) Board of Directors, we are writing to express our support for H.R. 2314, the Native Hawaiian Government Reorganization Act, commonly known as the Akaka bill, which was reintroduced on May 7, 2009, and provides a self-determination process for Native Hawaiians to be federally recognized by the U.S. government. However, we condition our continuing support of the bill as it moves forward in the process on the hope that certain major concerns will be addressed.

The Native Hawaiian Bar Association is a membership organization of Native Hawaiian judges, lawyers, and other legal professionals. Founded in 1992, the NHBA promotes unity, cooperation and the exchange of ideas among its members and within the broader legal community. The NHBA strives for justice and effective legal representation of Native Hawaiians and provides a forum for discussion, examination and resolution of legal issues affecting Native Hawaiians. It has offered symposia, amicus curiae and other collaborations in the areas of self determination, access and gathering protection, Hawaiian Home Lands and ceded lands breach of trust claims.

Since the first introduction of the Akaka bill in 2000, the NHBA has monitored the legislation’s progress and the challenges it has faced within our Hawaiian
community, policymakers in Washington, D.C, and Hawaii, and the general public. During 2006, the NHBA Board of Directors worked very closely to secure the support of the American Bar Association in a resolution urging Congress to pass legislation to establish a process to provide federal recognition and to restore self-determination of Native Hawaiians.

Our major concerns with H.R. 2314 are as follows:

Role of the U.S. Department of Defense

The exclusion of the U.S. Department of Defense (DOD) as it relates to the Office for Native Hawaiian Relations and the Native Hawaiian Interagency Coordinating Group (ICG) in section 5 (c) and section 6 (e) is unnecessary. First, the provisions contain no mandatory or onerous requirements for DOD. For the Native Hawaiian ICG, the President has the authority to designate which federal officials comprise the ICG.

Second, DOD already interfaces with the Hawaiian community under a multitude of federal laws, regulations, policies, and processes closely affiliated with DOI, including the Hawaiian Homes Commission Act, the Hawaiian Home Lands Recovery Act, the Native American Graves Protection and Repatriation Act, the Religious Freedom Restoration Act, the National Environmental Policy Act, and the National Historic Preservation Act, to name a few.

Most recently in September 2008, the DOD invited the Hawaiian community to review and comment on a draft DOD Native Hawaiian Organizational Consultation Protocol. The protocol is expected to provide guidance to DOD civilian and military personnel who are required to consult with Native Hawaiian organizations in accordance with the requirements of federal laws, regulations, and policies. During its outreach to the Hawaiian community, DOD worked closely with the state Office of Hawaiian Affairs in its efforts. DOD's draft protocol proposes language in its preamble recognizing that Native Hawaiians have a unique heritage and the distinction of being indigenous peoples that have maintained a rich tradition and culture developed over generations.

Lastly, the participation of federal agencies, including DOD, is a common practice and beneficial to the overall federal relationship with various communities in our nation. Recent examples include the Interagency Group on Insular Areas (IGIA) and the Interagency Working Group on Asian Americans and Pacific Islanders (IWG). The IGIA provides advice on the establishment or implementation of federal policies concerning American Samoa, Guam the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands. The IWG provides advice on improving access to federal opportunities for Asian Americans and Pacific Islanders. DOD participates in both interagency groups.

Role of the U.S. Department of Justice

The bill should include the provision in previous versions of the Akaka bill authorizing the designation of a U.S. Department of Justice (DOJ) representative to assist the Interior Department’s Office for Native Hawaiian Relations in the implementation and protection of the rights of Native Hawaiians and their political, legal, and trust relationship with the United States, and upon the recognition of the Native Hawaiian government, the implementation and protection of the rights of the Native Hawaiian government and its political, legal, and trust relationship with the United States.

Given the history of federal treatment toward Native Hawaiians, including the inconsistency in its federal policy on self-determination and federal programs, it is important to clarify that DOJ has a mandatory role to safeguard the rights of Native Hawaiians in the federal-Native Hawaiian relationship.

Claims and Sovereignty Immunity

We believe it is unnecessary and premature to include provisions on claims and sovereign immunity prior to federal recognition of a Native Hawaiian Government and recommend that these provisions under section 8(c) be taken out of the bill. Such provisions could be contemplated during implementation legislation after federal recognition is conferred and negotiations between the Native Hawaiian Governing Entity and the State of Hawai‘i and Federal Government are completed.

The bill’s provisions on claims and federal sovereign immunity appear to be overly broad and may prohibit lawsuits by individual Native Hawaiians for claims that could be pursued by any other member of the general population. For instance, under section 8(c)(2)(B), the Federal Government not only retains sovereign immunity but revokes any preexisting waiver of sovereign immunity including waivers under the Administrative Procedures Act and the Quiet Title Act. Moreover, this revocation appears to apply to claims of individual Native Hawaiians, not just possible claims of the Native Hawaiian governing entity. Thus, a Native Hawaiian who owns land next to a Federal Government facility and wishes to bring a quiet title action within the applicable 12-year statute of limitations against the United States to clarify boundaries would be foreclosed from doing so, but any other person in similar circumstances could bring such an action. Under a literal reading of the provision, this would be the result whether or not the Native Hawaiian lived in Hawai‘i or the property was located in Hawai‘i.

The negative impacts of this provision are also amplified in section 8(c)(2)(C) by applying the prohibition to “claims of a similar nature and claims arising out of the same nucleus of operative facts[.]” The provision goes on to state that such claims would be rendered nonjusticiable when brought by any plaintiff “other than the Federal Government.” This provision thus creates the situation in which only the Federal Government can bring claims against itself – surely an anomalous result and one that cannot have been purposefully intended.

The federal sovereign immunity provisions also raise strong Equal Protection concerns in prohibiting claims by Native Hawaiians in situations where others could bring claims. They also create an extraordinarily unusual circumstance in which Native Hawaiians are barred from bringing an action and allowing only the Federal Government to bring an action against itself.


In summary, we look forward to further discussions on the concerns raised in our testimony and will continue to review other areas of the bill, including the issues of state sovereign immunity and civil and criminal jurisdiction.

Self-determination is a critical issue for our Hawaiian community. We wish to participate in this process and continue the progress made with our Federal Government since the enactment into law of the 1993 Apology Resolution (P.L. 103-150) and the reconciliation efforts previously initiated by the Departments of Interior and Justice and reflected in their 2000 report “From Mauka to Makai: The River of Justice Must Flow Freely.”

We respectfully request that the members of the House Natural Resources Committee work with our Hawai‘i Congressional Delegation and the NHBA and our Hawaiian community as H.R. 2314 moves through the legislative process.