Ka Wai Ola - Office of Hawaiian Affairs, Volume 21, Number 7, 1 July 2004 — AKAKA BILL MYTH OR REALITY [ARTICLE+ILLUSTRATION]

AKAKA BILL MYTH OR REALITY

Excerpts from the eall-in show

On June 21, OHA sponsored a eall-in TV show focusing on the Akaka BiII and.fed.eral recognition for Hawaiians. During the hourIong broad.cast on KITV4, questions sent in by viewers via ielephone and. e-mail were fielded by a panel of three Iegal experts: Iiulian and. constitutionaI law authority John WiIkinson of the University of CoIorad.o, Hawaiian-rights attorney MeIod.y MacKenzie and. former Hawai'i Supreme Court Justice Robert Klein. Documentary filmmaker Ed.gy Lee mod.erated. the program. A totaI of 350 questions were received., with nearly 50 of them answered. on the ain What foIIows are excerpts of questions and. answers from the program. To view the eompleie show on-Iine, visit wwwAhehawaiiehannel.eom/oha/ through July 21. To read more, visit nativehawaiians.com. Some feel that the passage of the Akaka Bill sets up a mandatory global settlement of Hawaiian claims. Does it? MacKenzie: There is specific language in the bill that says this act is not viewed as a settlement of any claims against the United States. I do think, though, that there are opportunities for the Native Hawaiian nation, onee it's formed, to settle certain issues, such as lands, or what jurisdiction the native nation would have. But I think the specific language is there for a very good reason, whieh is that we do not want the bill to be a global settlement. Will the passage of the Akaka Bill block any further move toward Hawaiian independence? Klein: No. Hawaiian independence is not an intended target of the Akaka Bill. The Akaka Bill is the form by whieh the United States will relate to the Hawaiian nation on a political basis. It does not in any way detract from an international forum for Hawaiian claims. That's not the intent of the bill, and it would not do that.

What would we give up by acknowledging Congress' broad "plenary power" over Hawaiians? Wilkinson: The United States, as a matter of eonstitutional law, has plenary - or very broad - power over native nations. But what we've seen in modern times, when tribes on the mainland have been so active, is that most of what Congress has done over the last two generations is to use the plenary power to the benefit of tribes. Of course, that was very different in the 19th century and mueh of the 20th. But in the past two generations, tribes have been able to make that broad Congressional power work to their advantage. Who will be considered Native Hawaiian according the Akaka Bill? MacKenzie: The definition is fairly broad. One part of it ties back to 1893 - basically, a descendant of an indigenous person who was here on Jan. 1, 1893. That's one definition, another definition is someone who was eligible for benefits under the Hawaiian Homes Commission Act as of 1921, and their lineal descendants. How are people living outside of Hawai'i going to be counted in this government? MacKenzie: In the Akaka Bill's initial definition of a Native Hawaiian, there is no residency requirement, so I think those Hawaiians who live on the continent

or in other parts of the world ean indeed participate initially. Subsequently, it will be up to those who are participating to determine citizenship. Whether a residency requirement is part of that or not is really going to be an open question and, I think, a really difficult but exciting issue for the nation to decide. Ifthe U.S has done wrong to Hawaiians, why are we asking the same people to help us gain sovereignty? MacKenzie: Partly because I think we have to recognize the situation we're in at this point. We have to deal with Unites States; there's no getting around that. Klein: I think the point of the matter is that Hawaiians have yearned for sovereignty ever since they lost sovereignty with the illegal overthrow. And the point of the Akaka Bill is to create a format for a relationship, sovereign-to-sovereign, with the United States. The Akaka Bill merely sets out the framework so that ean happen. If this bill passes, would it open up the possibility of gambling? MacKenzie: There is a specific provision in the bill that says that the provisions of the Indian Gaming Regulatory Act would not be applieahle. So the bill itself does not open up gambling. And as I understand it, even for Indian tribes, gambling ean only take plaee in states where gambling is already allowed, and Hawai'i does not allow gambling. If the U.S. recognizes that the overthrow was illegal, why can't we bring our problems to the U.N.? Wilkinson: What is so hard about international law - and this is not something that I think is right - is that international law is based on power. The overthrow was illegal and wrong, but the United States continued with it and annexed Hawai'i as an act of power, and it became the land of the United States. So the appeals to the U.N. haven't worked because the international community recognizes only certain nations, and they deal the rest of them out. It's hard, and it's not right, but that is how international law works. ■

Panelists John Wilkinson, Melody MacKenzie and Robert Klein respond to questions read by moderator Edgy Lee during the eall-in ShOW. Photo: Derek Ferrar