Ka Wai Ola - Office of Hawaiian Affairs, Volume 27, Number 2, 1 February 2010 — The real world [ARTICLE+ILLUSTRATION]

The real world

The great buzz in the Native Hawaiian community, indeed in the entire island eommunity, is the looming passage of the Native Hawaiian Government Reorganization Bill. The Senate Committee on Indian Affairs approved an amended form of the original bill for movement to the floor. Representative Abercrombie was unahle to get committee approval of the amendment in

the U.S. House of Representatives, and was constrained to send the unamended version to the floor. The respective committee of the two bodies will be required to meet to iron out differences in the two bills. Meanwhile, OHA's attorneys are in deep discussion with the State Attorney General regarding his concerns and objections to the amended bill. We ean expect that the State's objections will be addressed and satisfied. OHA, and others, have gone to great lengths to explain the amendments and their differences with the terms of the original bill. The amended bill is really simpler and a more easily understood approach to the long-standing issues emanating from the overthrow of the Native Hawaiian monarchy in 1893 and the conspirators' complete usurpation of Native Hawaiian autonomy and self-governance. This article is simply my observation, my "take" on what the amended bill says and does. First of all, section 2 (23) (B) recognizes that "Native Hawaiians have never relinquished their claims to sovereignty or their sovereign lands." And section 2 (23) (C) recognizes that the United States extends services to Native Hawaiian "because of their unique status as the native people of a priorsovereign nation ..." (emphasis added). Thereafter, in a rather complex process, the bill provides for establishing who is eligible to participate in the reorganization proceedings and how those proceedings will lead to the establishment of the governing entity. Essentially, there will be an election of members of a eouneil of eligible Native Hawaiians who will conduct a referendum

to determine the proposed powers of the new governing entity, and develop proposed organic governing documents and eventually hold an eleetion for the purpose of ratifying those documents. Thereafter, assuming everything has been conducted in accordance with the bill, the Secretary of the Interior will certify the governing documents. After the process is completed, the Secretary so certifies, and the officers of the

new governing entity have been installed, the United States will extend "Federal recognition to the Native Hawaiian governing entity as the representative sovereign governing body of the Native Hawaiian people ..." The kicker comes, in my view, in section 9, "Reaffirmation of Delegation of Federal Authority to State of Hawaii; Negotiations; Claims." Generally, the section provides that, when the governing entity has been recognized it may enter into negotiations with the State of Hawai'i regarding such matters as transfer of State lands and other resources and rights in those lands and resources to the new entity; exercise of govemment authority over those lands and resources; the exercise of civil and criminal jurisdiction; and "the exercise of other powers and authorities that are recognized by the United States as powers and authorities typically exercised by governments representing indigenous, native people of the United States." My problem with the bill is that it transfers the same kind of powers that have been historically and traditionally deemed inherent in Indian tribes within the borders of the United States. But those Indian tribes did not have organized central governments that determined the rights and obligations of the government and the governed. So, under the bill we are not really starting out with a "full plate" of inherent sovereign rights. But, as my friend Dr. John Craven said to me recently, "We need to live in the real world as the real world is." And the real world is: We don't have the hammer. We ean only hope to improve our lot further in the future. ■

Walter M. Heen TrustEĒ, ū'ahu