Ka Wai Ola - Office of Hawaiian Affairs, Volume 9, Number 7, 1 July 1992 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

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

The administration's "Catch 22" for Native Hawaiians

Questions concerning the United States' obligations to Native Hawaiians ean affect legislative items relating to Native Hawaiians, as we discussed in the June eolumn. A case in point is S.684, the National Preservation Act

Amendments, introduced by Sen. Wyche Fowler Jr. of Georgia and its eompanion bill in the House, HR 1601 introduced by Congressman Charles E. Bennett of Florida. The amendments would, among other changes, recognize and include Native Hawaiian organizations in the federally-sponsored preservation programs. The original National Historic Preservation Act was passed in 1966. lt provided federal funding for state programs promoting preservation on all lands within the state. The 1980 amendments allowed direct grants to Indian tribes. However, no money was appropriated until 1990, and the nationwide tribal funding is presently under $1 million. In 1986, by regulation, Native Americans, including Native Hawaiians, were deemed eligible as "interested parties" to participate in the preservation process. Properties of traditional religious and cultural significance were also made eligible for inclusion in the National Register of Historic Places. The 1992 amendments now being considered and expected to be marked up shortly by the Senate Energy Committee, have been criticized by the Department of the Interior. Interior thinks Native Hawaiians should be deleted from the bill. Interior writes: ". . . we do not support the concept of allowing NHOs (Native Hawaiian organizations) to participate in the program as an Indian tribe would, for the following reasons. First, Indian tribes have a special government-to-government relationship with the federal government, as does the state, whereas an NHO would not. Therefore we recommend that Native Hawaiian organizations be removed from contemplation under this bill, and instead . . . a state-sanctioned Native Hawaiian Preservation Officer be appointed by the Governor of Hawai'i to run a program for Native Hawaiians." Interestingly, the administration also opposes the inclusion of Alaskan Native Corporations in the preservation act. The Keepers of the Treasures, the umbrella organization of Indian tribes, supporting the legislation has opposed the administration and supported the inclusion of Native Hawaiians and Alaskan Natives. The Department of Interior's position ignores the significant track record of Native Hawaiian organizations in the area of preservation, particularly the existing Native Hawaiian Historic Preservation Council. lnterior's position also ignores the recognition provided by the repatriation provisions of the National Museum of the American Indian Act

and the fact that Native Hawaiian Organizations (the Office of Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai'i Nei) under terms of the act, were the first organizations to successfully complete a full and total repatriation and reburial of Native Hawaiian skeletal remains that had been in the possession of the Smithsonian Institution. On another level, the position of the administration is a continuation of its refusal to acknowledge that the United States has special obligations to Native Hawaiians and their lands. The government whieh now argues that Native Hawaiians cannot be recognized in this bill without a government or a land base, is the government whieh took them from Hawaiians in the first plaee, according to its own reports. Basically, the administration is staking out its position in advance to resist Native Hawaiian claims and Native Hawaiian demands for restoration of self-government. In any event, it is unlikely that the Congress will completely accept the administration's position and its enactment into law is at least a question mark. Native Hawaiian Health In a related area, Congress is expected to ignore the administration's aati-Native Hawaiian views. S2681 is a reauthorization of the landmark Native Hawaiian Health Care Amendments whieh, in its pre-introduction form, was the subject of a hearing on April 14. It was marked up and favorably reported by the Senate Select Committee on Indian Affairs on May 13. The committee is chaired by Sen. Daniel Inouye who also introduced the bill. The original Native Hawaiian Health Care Amendments (and the Native Hawaiian

Education Amendments) were accompanied by an extensive legal and policy analysis asserting that Congress had the power to legislate for the special benefit of Native Hawaiians. But, of course, the administration would not agree and the amendments had to be creatively packaged in other veto-proof legislation to assure its passage. That creative route will probably be required for S2681 for this Congress, as well as the reauthorization of the Native Hawaiian Education Amendments when they eome up next year. Even when the issue of Native Hawaiian eligibility for special programs is not an immediate legislative barrier, quick passage is not always possible. The reauthorization of the Administration for Native Americans (whieh includes the expansion of the Native Hawaiian Loan Program administered by OHA) was made part of the reauthorization of the 01der Americans Act (HR 2967 and its eompanion S2431). The bills enjoyed strong bi-partisan support and passed both Houses of Congress in four months but have been gridlocked on an unrelated issue since November 1991. A floor amendment was placed on the Senate version whieh would have increased the amount of ineome that retirees could eam before being subject to ineome taxes. As this provision, it is estimated, would add to the nahonal debt by several hillion dollars it quickly ran into trouble with the Congressional finance and tax committees as well as the administration. Although this bill will probably eventually make it into law, so far the attempts to find a compromise on the very popular retiree ineome issue have not yet been successful.