Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 12, 1 December 1993 — News from Washington D.C. [ARTICLE+ILLUSTRATION]

News from Washington D.C.

Mai Wakinekona Mai

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

Federal options for responding to Hawaiian calls for aeiion

As 1993, the centennial year of the overthrow of the native Hawaiian government, concludes, the only concrete step taken so far by the United States government to recognize that event has been the passage of the "apology resolution." (Ed. note See story page 1). Even though the resolution is largely symbolic, some have opposed its implication that the

United States has an I obligation to native Hawaiians, either in terms of damages (including land return), or in terms of re-establishing self-govemment. On another front, now that the notorious "midnight" solicitor's opinion

has been withdrawn, the battle continues to determine to what degree will the executive branch support a U.S. trust resp>onsibility to native Hawaians. This battle has focused on the Hawaiian home lands trust, and the potential financial liability the U.S. may have for mismanagement of ihe trust prior to statehood. The Office of Hawaiian Affairs wants the battle to focus on the

real issues of Hawaiian claims for land and sovereignty related to the overthrow, not solely on the harms to the Hawaiian home lands trust. Thus, the Office of Hawaiian Affairs has begun a series of messages, in whieh both Hawaiians and non-Hawaiians are being called on to unite, and eventually demand, from Congress and the

for action? At a minimum, the president could create a commission or study group that could make a "studied" review and make specific recommendations to Congress on a claims package that the administration could support and present to Congress. The study commission idea, of course, was tried in 1980-1983, and when the administration changed, the

President, more substantive steps to resolve the critical issues of claims and sovereignty. What are some of the available options that the president and/or Congress have to respond to Hawaiian requests

result was a politically biased report that has been strongly eondemned by native Hawaiians, including the native Hawaiian chairwoman of the commission, now OHA Trustee Klna'u Boyd Kamali'i. Another possible executive branch approach could be to appoint a joint agency task force to negotiate the terms of a legislative package or settlement with native Hawaiians. This approach has been used in some Indian land claims and water rights cases in the Eastern U.S. It usually has followed some court action whieh recognizes, at least preliminarily, the native claims. On the federal side, this working group should involve the Department of Justice, the president's Office of Management and Budget (the money people), and the Department of the Interior. State officials are usually invited to participate in this process since claims also involve them as weU. Any settlement worked out by native Hawaiians and a federal task force has a very good ehanee of success in being enacted into law. Still another area where the executive branch ean do some

good on its own is via the annual budget that the president presents to Congress. This document sets, in part, both the administration's financial commitments and its policy commitments. Inclusion in this document of any settlement proposal or recognition proposal would certainly be a positive step. From Richard Nixon onward, presidents have issued administration policy statements on views on federal Indian policy. While not law, these policy statements ean set the standard for all federal agencies to follow. A positive policy statement by President Clinton on the federal obligation to native Hawaiians, claims and self-government, could help resolve some very important issues within federal agencies. Congress remains the principle arena for resolution, however. Presidential support for a proposal is very important, but ultimately it is Congress that will enact the necessary legislation to resolve Hawaiian claims. Congress has several routes it ean follow. The most traditional one for claims has been one whieh waives the sovereign immunity of the United States to lawsuits, and allows claimants

their day in court. Usually this "day" (in fact many years) is in either the federal claims court, or a special tribunal set up just for the particular elaim or claims. Generally speaking, however, these types of court actions only provide for money damages, and will not return any portion of the ceded lands that native Hawaiians have claims regarding. There is also a little-used advisory process in whieh either house of Congress may refer a elaim whieh has no other remedy available to the Claims Court, whieh determines whether a claimant has a legal, equitable, or gratuity elaim against the United States. The Claims Court in effect makes a monetary recommendation to Congress. Although Congress is not legally bound to follow, it usually follows the court's recommendation. Lastly, Congress ean deal with the claims as an extensive legislative matter, with draft legislation (whieh ean eome from the task force approach noted above), participation by all the potential parties through the hearing process, and collecting the necessary votes for passage.