Ka Wai Ola - Office of Hawaiian Affairs, Volume 8, Number 2, 1 February 1991 — Good purpose for "purpose clause" [ARTICLE+ILLUSTRATION]

Good purpose for "purpose clause"

>Iai Waklnekona

By Paul Alexander Washington, D.C. Counsel for OHA

In a eolumn last month, Mahealani Kamauu of the Native Hawaiian Legal Corporation discussed some of the reasons the Hawaii State Legislature approved Senate Bill 3236, the so-called "purpose clause" bill.

What seemed to some as a fairly straightforward effort to strengthen one of the primary pillars of the Federal Native Hawaiian Trust relationship — adding a purpose clause to the 1921 Hawaiian Homestead Act — is an issue of great eoneem in Hawai'i. Since the concurrence of the United States is required before S.B. 3236 ean become effective as law, a fresh look at the issues surrounding the "purpose clause" will be undertaken by Congress. Congress is the supervising trustee of the Hawaiian Homestead Act, under the Statehood statute.

Ihe tirst step m the process tor reviewmg Hawai'i statutes that may change or affect the Homestead Act is the introduction by a senator or a member of Congress of a joint congressional resolution. Such a resolution will be assigned to the Senate Committee on Energy and Natural Resources (Sen. Akaka is on this committee) and the House Committee on Interior and Insular Affairs. One or both of these Committees will hold public hearings on the joint resolution, soliciting views of Native Hawaiians, as well as the views of the Bush administration. Although S.B. 3236 isexpected to receive favorable treatment, passage of such a joint resolution

is not automatic. The administration's opposition to recognizing an enhanced trust obligation to Native Hawaiians is well known and could impede passage. This past Congressional session, after problems were raised in Senate hearings, several Hawai'i statutes related to the Homestead Commission were not approved.

Concerns addressed Some of the concerns with the "purpose clause" include a fear the legislative process could goawry and end up with a statute that reduces or weakens the Homestead Commission. The possibility that legislation could go wrong is always a risk. However, it is a very small risk when the affected eongressional delegation supports the effort; the affected congressional delegation's views are given significant weight by their colleagues. Another voiced eoneem is that the "purpose clause" amendment could set an inappropriate precedent restricting future flexibility in determining how Native Hawaiian sovereignty or selfdetermination should be organized or carried out. S.B. 3236 does not in any way restrict future Native Hawaiian decisions. On the contrary, S.B. 3236 provides an additional building block for committing the United States to support Native Hawaiian sovereignty. The Act states:

"... that the policy of this Act is to enable native Hawaiians to return to their lands in order to fully support self-sufficiency for native Hawaiians and self-determination of native Hawaiians in the administration of this Act and the preservation of the values, traditions, and culture of native Hawaiians." Self-determination is a term of art expressing federal policy supporting the right of self-govern-ment for Native Americans.

Financial responsibility Other concerns are that the federal government and state government will both avoid making necessary financial commitments to the Homestead Commission, and that S.B. 3236 will somehow absolve either or both governments of responsibility and financial liability for the "illegal" seizure of the Native Hawaiian land base in the late 19th century and thereafter. S.B. 3236 would make both governments accountable financially. (It does not, however, cure the annual problem, somewhat improved in recent years, of getting enough appropriated dollars to operate and develop Homestead lands.)

Finally to date no one has been able to legally hold either the United States of the State of the Hawai'i accountable in a court of law for the "illegal" taking of the Native Hawaiian land base. S.B. 3236 does not affect in either way the case for this accounting. A special legal responsibility The Homestead Act, is of course important for the program it creates. However, it is perhaps most important conceptually as the primary statute where the United States voluntarily puts forth its view of having a special legal responsibility to Native Hawaiians.

This special responsibility or relationship is necessary to constitutionally sustain special statutes — whether social programs, self-gover-nanee, or claims settlements — that will be needed to implement whatever version of sovereignty Native Hawaiians ultimately choose. S.B. 3236 attempts to strengthen this statement of the United States. If successful, S.B. 3236 will make it easier to demonstrate the trust relationship, and therefore somewhat easier to legislate for the benefit of Native Hawaiians.