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Thursday, March 31, 2011
2011 Akaka Bill grants Tribal officials broad immunity from Hawaii Criminal and Civil Laws
By Andrew Walden @ 10:54 AM :: 6747 Views :: Energy, Environment

The Akaka Bill was yesterday reintroduced for 2011.  The 2011 version contains all of the same “instant tribal immunity” provisions which Hawaii Attorney General Mark Bennett and Governor Linda Lingle objected to when this version was first introduced in 2009.  Below are comments from Lingle, Bennett, and House Republican leaders written shortly after the 2009 version was introduced.  All of the 2009 language referenced is included in the 2011 Akaka Bill.

Here is the key point from Gov. Lingle, March 24, 2010:

“The explicit sovereign immunity and exemption from regulation provisions in the present bill allow the Native Hawaiian governing entity, and its leaders, to conduct activities anywhere in Hawai‘i (and potentially any other state) in a way that is inconsistent with State criminal statutes otherwise applicable to all citizens, and state laws governing narcotics and dangerous drugs; civil defense; alcohol and tobacco; fire and building codes necessary for public safety; traffic safety; landlord-tenant matters; clean air, clean water, hazardous waste (and other state pollution statutes); child welfare, child protection, and child safety; public health; food and drugs; and virtually every other conceivable law that serves to protect the public. It is not clear how the State could enforce its interests against unlawful or irresponsible actions by the governing entity or its elected leaders or employees."

   *   *   *   *   *

Text of the letter from the Hawaii Attorney General:     Dec 15, 2009

The Honorable Nick J. Rahall, II, Chair

The Honorable Doc Hastings Ranking Minority Member

House Committee on Natural Resources

1324 Longworth House Office Building Washington, D.C. 20515

Re:      H.R. 2314 -Native Hawaiian Government Reorganization Act

Dear Chair Rahall and Ranking Minority Member Hastings:

As Hawaii's Attorney General and chief legal officer, I write to express the strong opposition of Hawaii Governor Linda Lingle and myself to many of the proposed changes (in a "markup") to the Native Hawaiian Government Reorganization Act, H.R. 2314, also known as the "Akaka Bill." It my understanding that H.R. 2314 will be marked-up in the House committee on Natural Resources on Wednesday, December 16, 2009. We were only provided copies of the proposed changes today by the Committee's Minority Staff (yesterday we received an informal copy of two sections of the new bill). None of the changes were drafted with our input or knowledge. As noted, we strongly oppose a number of the changes, but note we have not had the opportunity to carefully study and analyze many of the changes in the new bill.

Governor Lingle and I have been strong advocates and supporters of the Akaka Bill for seven years. We have worked with the Hawaii Congressional Delegation to craft a bill that had strong bipartisan support. The version of the Akaka Bill which we support is the current version of H.R. 2314.

The changes under consideration will completely change the nature of the Native Hawaiian governing entity. The current version of the bill states (in section 8(b)(3)):

"Any governmental authority or power to be exercised by the Native Hawaiian governing entity which is currently exercised by the State or Federal Governments shall be exercised by the Native Hawaiian governing entity only as agreed to in negotiations pursuant to section 8(b)(1) of this Act and beginning on the date on which legislation to implement such agreement has been enacted by the United States Congress, when applicable, and by the State of Hawaii, when applicable. This includes any required modifications to the Hawaii State Constitution in accordance with the Hawaii Revised Statutes." (Emphasis added).

Section 9(b)(3) of the proposed new bill will change the above­ quoted language to the following wholly different language:

"The Native Hawaiian governing entity shall be vested with the inherent powers and privileges of self-government of a native government under existing law, except as set forth in section 10 (a). Said powers and privileges may be modified by agreement between the Native Hawaiian governing entity, the United States, and the State pursuant to paragraph (1), subject to the limit described by section l0 (a). Unless so agreed, nothing in this Act shall preempt Federal or State authority over Native Hawaiians or their property under existing law or authorize the State to tax or regulate the Native Hawaiian governing entity."  (Emphasis added).

The following language in the current bill (in section 9(e)) will be removed its entirety:

“(e) Jurisdiction-Nothing in this Act alters the civil or criminal jurisdiction of the United States or the State of Hawaii over lands and persons within the State of Hawaii. The status quo of Federal and State jurisdiction can change only as a result of further legislation, if any, enacted after the conclusion, in relevant part, of the negotiation process established in section 8(b)." (Emphasis added).

The new bill will also provide in section l0(c) that "The [Native Hawaiian Interim Governing] council and the subsequent governing entity recognized under this Act shall be an Indian tribe [pursuant to certain sections of the Indian Civil Rights Act of 1968] ...." (Emphasis added).

These changes, taken together, change the bill from one where the status quo and the relations between the United States, the State of Hawaii, and the Native Hawaiian governing entity can be changed only after negotiations and after passage of implementing legislation, to a model in which the status quo immediately changes, pursuant to an Indian law model.

The magnitude and potential impact of such changes cannot be overstated. The present version of the bill preserves all the rights and interests of the State of Hawaii until the Congress and the State Legislature can evaluate the result of negotiations. The proposed revisions make immediate changes to the rights and interests of the State of Hawaii. These changes may immediately incorporate into the law governing Native Hawaiians a vast body of Indian law, much of which is unsuited for the State of Hawaii, and none of which (to our knowledge) has been evaluated for its impact on Hawaii.

These changes are extensive, have been not part of any bill which we have supported, and have an enormous potential to negatively impact Hawaii and its citizens. We note, moreover, that there has been no public hearing reflecting this new model in at least the last seven years. The views of Hawaii's citizens, native Hawaiian and non-native Hawaiian alike, have not been heard (certainly not recently) with regard to this new model.

The implications of forever changing the relationship between native Hawaiians and the State of Hawaii, and simply deciding native Hawaiians are an Indian tribe (for at least some purposes), are potentially enormous. We oppose these changes. And, we do so mindful of the fact that Governor Lingle and I have been among the strongest supporters of the Akaka Bill for seven years.

We also note that the new bill has a new term­ "Qualified Native Hawaiian Constituent"—which is defined in six pages of the bill. There have never been public hearings on this new term and its significance, and we have not had the opportunity to study it in detail.

We also oppose other changes to the bill, including removing the current language in section 8(c) (3) which sets forth the State of Hawaii's complete retention of its sovereign immunity (unless waived in accord with State law), and which makes clear that nothing in the bill shall be construed to constitute an override of Hawaii’s Eleventh Amendment sovereign immunity pursuant to section 5 of the Fourteenth Amendment.

We continue to believe the Akaka Bill in its present form is important and needed legislation that has strong bipartisan support. We also believe that the changes we oppose will affect and erode the basis for such support.

We respectfully ask that the changes to the Akaka Bill which we oppose not be made. We also respectfully ask the Committee to hold a public hearing with testimony, as the pew bill is so different from the current version. We are available to discuss the Akaka Bill and this letter at your convenience, and thank you in advance for your consideration of this letter.

Very truly yours,
/s
Mark J. Bennett
Attorney General, State of Hawaii

cc:       Members of the House Committee on Natural Resources Committee

The Honorable Neil Abercrombie
The Honorable Mazie K. Hirono
The Honorable Daniel K. Akaka
The Honorable Daniel K. Inouye
Governor Linda Lingle

PDF of Letter: LINK

Wash Times January 5, 2010: Bennett: New Akaka Bill guarantees years of litigation

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GOVERNOR LINGLE ASKS U.S. SENATORS TO REJECT CURRENT VERSION OF AKAKA BILL

Pledges to Continue to Work with Hawai‘i Congressional Delegation to Amend Legislation   March 24, 2010

LINK >>> FULL TEXT OF LETTERS

LINK>>> OHA RESPONSE

HONOLULU – Governor Linda Lingle, who has always supported federal recognition for native Hawaiians through the Akaka Bill until material changes were made late last year that are not in the best interest of the state, said today she continues to hold out hope that the bill can be amended to a version that she can support.

However, until amendments are made, Governor Lingle is asking all U.S. Senators to reject the bill in its current form.  In a letter she sent to Senators yesterday, the Governor outlined her opposition to the changes that were made to the Akaka Bill late last year and earlier this year.

“I am saddened that I must now strongly oppose this legislation, as I have strongly advocated for Native Hawaiian recognition throughout my time in office.  But as Hawai‘i’s Governor it is my responsibility to ask you to reject this bill in its current form,” the Governor wrote to the U.S. Senators.

“This is a most difficult position for me to take because I continue to believe that federal recognition for Native Hawaiians, akin to federal recognition for American Indians and Alaska Natives, is the just and right thing to do,” the Governor said in the letter.

The letter noted that the prior version of the bill set up a process of recognition first, establishment of a Native Hawaiian governing entity, followed by negotiations between the entity, the United States, and the State, concerning, among other things, the powers to be exercised by the entity and the assets, including land, to be transferred to the entity.

The Governor explained to the Senators that she opposes the current bill because it vests the entity almost immediately with broad and ill-defined powers.  The bill also explicitly exempts the activities of the entity, and its officers and employees from almost all regulation by the State and the counties, no matter how important the regulations are to the health, safety, and interests of the public. 

The Governor’s letter stated, “The explicit sovereign immunity and exemption from regulation provisions in the present bill allow the Native Hawaiian governing entity, and its leaders, to conduct activities anywhere in Hawai‘i (and potentially any other state) in a way that is inconsistent with State criminal statutes otherwise applicable to all citizens, and state laws governing narcotics and dangerous drugs; civil defense; alcohol and tobacco; fire and building codes necessary for public safety; traffic safety; landlord-tenant matters; clean air, clean water, hazardous waste (and other state pollution statutes); child welfare, child protection, and child safety; public health; food and drugs; and virtually every other conceivable law that serves to protect the public. It is not clear how the State could enforce its interests against unlawful or irresponsible actions by the governing entity or its elected leaders or employees."

In addition, although the bill still prohibits the entity from gambling, the bill strips the State of any direct and effective means of enforcing the anti-gambling provision in court. 

Governor Lingle and Attorney General Mark Bennett proposed amendments to give the State the power to regulate when public health and safety were involved, to give the State an effective means of enforcing the anti-gambling provision, and to make certain that no person would be exempted or immune from any of the State's criminal statutes. 

The amendments were rejected, and as the Governor’s letter states, “the gap between what is acceptable to the State and what has been offered to the State remains wide and deep. It is fair to say that these negotiations have reached an impasse.”

“It is with great sadness that I oppose the current version of the Akaka Bill, but I believe passage is not in the best interests of Hawai‘i or our people,” said Governor Lingle.  “I still stand willing to work with the Hawai‘i Congressional delegation to craft a bill I can support.”

####

Attached to the Governor’s letter were three editorials:

March 24, 2010 COVERAGE

---30---

Native Hawaiian Recognition Bill Creates Unconstitutional Race-Based Government

News Release from House Natural Resources Committee Republican Caucus  --  February 22, 2010

This week, the House will consider the Native Hawaiian Government Reorganization Act of 2009 (H.R. 2314), which creates a separate, race-based government specifically for Native Hawaiians.  This divisive legislation would allow this new government entity to be exempt from state taxes, set their own civil and possibly criminal jurisdictions apart from the State of Hawaii, and take ownership of lands currently owned by the state (and potentially the federal government).  Up to 400,000 Native Hawaiians from across the country (not just those living in Hawaii) could be eligible to become members of this new governing entity.

Democrats have re-written this bill behind closed doors (which has yet to be made public anywhere except for the Republican Committee website), without public consent, while failing to address serious and legitimate concerns:

· Congress does not have the constitutional authority to recognize Native Hawaiians as a sovereign Indian Tribe. Native Hawaiians are not and never have been members of a tribe.  They do not share the same political and legal history as federally recognized Indian tribes and Congress does not possess the authority to extend tribal recognition to them under the Indian Commerce Clause (Article I, Section 8 of the Constitution).  Furthermore, the Supreme Court in Rice v. Cayetano called into question Congress’ ability to recognize Native Hawaiians as a governing entity.

· It is unconstitutional to divide American people solely by race or ethnicity.  The United States Commission on Civil Rights strongly opposes this legislation based on grounds that it discriminates based on race. In a letter to members of Congress on August 28, 2009 they wrote that:

“We do not believe Congress has the constitutional authority to ‘reorganize’ racial or ethnic groups into dependent sovereign nations unless those groups have a long and continuous history of separate self-governance.”

· The State of Hawaii continues to have concerns with this bill, specifically that it would immediately give the government entity “inherit powers” and remove state authority.  Hawaii’s Attorney General Mark Bennett and Governor Linda Lingle, who support Native Hawaiian recognition, wrote a letter last December objecting to last-minute revisions in the bill.  According to an article last week in the Honolulu Advertiser, not all of Attorney General Bennett’s concerns have been addressed:

Bennett said the state's concerns about the Obama administration's language have been addressed by the parties.  However, he said, the state still has strong objections to clauses in the new draft that could give immunity from state law to the entity, its employees and officers while they are conducting government activity.”

· Native Hawaiians would be exempt from state laws, regulations and taxes.  Native Hawaiians do not live in separate communities or on separate lands, they live in neighborhoods with other Hawaiians.  This would result in neighbors living under different legal regimes.  For example, a Native Hawaiian business owner could be exempt from a state sales tax while his competitor down the street is not. 

· The people of Hawaii, whose lives and communities would be dramatically impacted by this legislation, should have a say in whether or not a race-based governing entity is established in their state.   According to a December 2009 Zogby Poll, only 34% of Hawaiians support this legislation.  Rather than forcing this upon the people, it should be put to a statewide vote.

· The membership criteria for inclusion in this government entity would be discarded once federal recognition is extended.  Even though the Department of Justice helped craft the membership criteria, the new governing entity would have the ability to grant, deny, or revoke membership for any reason.  Allowing the entity to throw away the criteria after recognition is achieved makes a mockery of the legal process.

· The bill sets a precedent that could be used by other ethnic groups seeking recognition. Gail Heriot with the U.S. Commission on Civil Rights testified before the committee that:

“If ethnic Hawaiians can be accorded tribal status, why not Chicanos in the Southwest? Or Cajuns in Louisiana?  Indeed, it is implausible to say that Congress has the power to confer this benefit only upon racial or ethnic groups, since ordinarily Congressional power is at its lowest ebb with issues that touch on race or ethnicity.”

For more information, read the dissenting views by Ranking Republican Doc Hastings.

# # #

STATEMENT BY GOVERNOR LINDA LINGLE ON THE NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT  February 22, 2009

“For more than seven years, my administration and I have strongly supported recognition for Native Hawaiians and supported the Akaka Bill. 

“We have supported a bill that would set up a process of recognition first, followed by negotiations between the Native Hawaiian governing entity, the State of Hawai‘i, and the United States.  Once that was completed, it would be followed by the Native Hawaiian governing entity’s exercise of governmental powers and authorities. 

“Amendments made to the bill in December 2009 turned that process around.  The current bill establishes that the Native Hawaiian governing entity would start with broad governmental powers and authorities, with negotiations to follow.

“Although I believe the original plan to negotiate first makes more sense, my administration has tried to work with the Hawai‘i Congressional delegation on the new structure to establish governing powers first, with negotiations to follow.

“Ultimately, although we had good and productive discussions, the current draft of the bill is not one I can support.

“The basic problem as I see it, is that in the current version of the bill, the ‘governmental’ (non-commercial) activities of the Native Hawaiian governing entity, its employees, and its officers, will be almost completely free from State and County regulation, including free from those laws and rules that protect the health and safety of Hawai‘i's people, and protect the environment. ’Governmental’ activity is a broad undefined term that can encompass almost any non-commercial activity.

“This structure will, in my opinion, promote divisiveness and litigation, rather than negotiation and resolution. 

“I do not believe such a structure, of two completely different sets of rules – one for ‘governmental’ activities of the Native Hawaiian governing entity and its officers and employees, and one for everyone else – makes sense for Hawai‘i. 

“In addition, under the current bill, the Native Hawaiian governing entity has almost complete sovereign immunity from lawsuits, including from ordinary tort and contract lawsuits, and I do not believe this makes sense for the people of Hawai‘i.

“My decision to not support the current version of the Akaka Bill is done with a heavy heart, because I so strongly believe in recognition for Native Hawaiians.

“If the bill in its current form passes the House of Representatives, I would hope it can be amended in the United States Senate.”

####

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