Ka Wai Ola - Office of Hawaiian Affairs, Volume 9, Number 5, 1 May 1992 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

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

Needed: a concerted educational effort on the Native Hawaiians' political-historical-legal case.

Onee again the administration in Washington, D.C. has targeted Native Hawaiian programs as part of its overall attack on special appropriations for Hawai'i. This action eame as part of its much-publi-cized attack on so-called

Congressional "pork." The device the administration is using is called "recision." Generally speaking, appropriation laws are very extensive and contain many, many programs and projects. Even though the administration may object to some, or many, specific parts of an appropriations bill, usually the president is forced to sign the bill or otherwise allow it to become law because the administration supports or needs the overall bill. Reflecting the Constitution's separation of powers between co-equal branches of government, the president does not have a line item veto. He must request approval from Congress not to spend money contained in an enacted appropriations law. That request is known as a "recision request." The primary recision requests (appropriated money the president does not want to spend) related to Hawai'i are: • $1.2 million for infrastructure development for Hawaiian Home Lands; • $1.3 million for job retention for the Hawaiian sugar eane workers; • $2 million for Hawaiian arts and crafts; • $600,000 for the promotion of American Pacific agriculture; and • $400,000 for the Hawai'i Real Estate Commission. If Congress either actively votes to reject the president's request — or does nothing — the president's recision request fails. Only an affirmative vote by Congress to approve the recision request makes the request effective.

Although this is a major campaign year (making predictions difficult at best) at this point most observers do not expect Congress to approve the president's recision request. Whatever the merits of the system or any individual project nationwide may be, those arguments and issues seem to have no relevance to funding for the targeted Native Hawaiian programs, particularly the infrastructure funding for Hawaiian Home Lands. As many of you are aware, there has been a continuing battle over the U.S. Department of Housing and Urban Development's funding for the Hawaiian Home Lands infrastructure in particular, and over the United States' responsibility to Native Hawaiians generally. Until the recent recision request, the dispute about funding Hawaiian Home Lands infrastructure appeared to have been resolved, after extensive effort by the Congressional delegation's negotiating with the administration to craft language that allowed the infrastructure

funding without provoking the "race" or "politieal status" debate. Some within the administration have argued that (for Constitutional purposes) Native Hawaiians are a race, not a political grouping. While the United States ean provide special or separate programs pursuant to its trust responsibility to a poliheal status native community, it cannot provide special or separate programs simply on the basis of race. Others in the administration have simply argued that whatever the Native Hawaiian politieal status may have been, the United States has no statutory, treaty, or course-of-dealings-based trust responsibility to Native Hawaiians.

Advocates for Native Hawaiians strongly assert the United States' trust responsibility as reflected in the Office of Hawaiian Affairs' paekage of claims/sovereignty bills. This severe dispute over the legal underpinnings of the U.S. trust obligations and responsibilities has distinct implications for the legislative strategy to resolve the Native Hawaiian claims and to restore Native Hawaiian self-governance. It should be remembered fhat there is a laek of knowledge of the legal and political history of Native Hawaiians generally, and with the United States particularly, in the minds of both the general public and the national political eommunities. At a minimum, these issues demonstrate the need for a concerted educational effort on the Native Hawaiians' political, histori-

eal and legal case. Some factors favor the Hawaiian causes, including the power and support of the Hawai'i Congressional delegation and the generally enhanced pro-native climate in the U.S. today. However, it seems clear that given the power of the opponents, Native Hawaiians face a difficult and long-term battle to achieve legislative victory. Most other native claims have had to go through pretty tough and time consuming legislative struggles. Since self-government restoration has no exact analogy in the Native American or Native Alaskan experience, it many be even more difficult for Native Hawaiians.

Developing concensus on goals and objectives will be an important ingredient in this struggle. The OHA bills that, as drafted, reflect both the elected trustees' expertise and experience, and the community and legal experts' views as expressed up to now are an important beginning point. No bill, whether a draft or introduced, is final until it's enacted. Even then it ean be amended. The OHA bills are the first complete legislative package containing the concepts that many in the community have been discussing for the past several decades. As such, they contain elements of the earlier Matsunaga/Mink proposals, the Inouye drafts, the Trust Counsel proposal and so forth. These Lalis, now circulating for comment, ean prcvide an opportunity to craft needed concensus.