Ka Wai Ola - Office of Hawaiian Affairs, Volume 27, Number 4, 1 April 2010 — To be or not to be [ARTICLE+ILLUSTRATION]

To be or not to be

That quotation from Shakespeare's Ham\et is uniquely applieahle to the negotiations required by the NHGRA (Native Hawaiian Government Reorganization Act) among the NHGE (Native Hawaiian Governing Entity) and the governments of the United States and State of Hawai'i onee the NHGE is formed. Hamlet's soliloquy is appropriate because the NHGRA first vests in the NHGE all "the inherent powers and

privileges of self-government of a native government under existing law[.]" However, the NHGRA further provides that those "powers and privileges may be modified by agreement between" the NHGE and the Federal and State governments, as authorized by the NHGRA and confirmed by enactment of Federal and State legislation. So, as I said recently on a Hawai'i Puhlie Television show, "The bill gives with one hand and takes away with the other." It provides for "inherent powers and privileges" but requires negotiations before full affirmation of those powers. The negotiation provisions are important because Govemor Lingle and State AG Mark Bennett objected to the amended form of the bill as passed by the U.S. House of Representatives. The bill is now stalled in the U.S. Senate because the Republican Senators do not want to undermine our Republican Governor. And in the present Congressional climate the bill will require the support of at least two or more Republican Senators, whieh is problematical at this point. Further negotiations with the governor and the AG will determine whether the NHGE is "to be or not to be." Thus, even assuming the bill becomes law, the NHGE, although empowered as other "native governments" are, will be required to negotiate on matters such as: transfer of State lands (presumably including ceded lands) and "surplus" Federal lands (whieh is nearly all ceded); exercise of governmental authority over such transferred lands, natural resources and land use; exercise of civil and criminal jurisdiction; taxing authority; any "residual responsibilities" of the U.S. and the State; and the assertion of historical wrongs against those two governments. Upon agreement on any of those matters the negotiating parties may submit amendments to existing laws to both the Federal and State govemments for enactment. Only after those enactments, if they occur, will the extent of governmental authority of the NHGE be clarified. In my view, perhaps the most important issues to be resolved are who is going to own what land and who is going to exercise authority, such as zoning, over that land. Without a land base there ean be no true self-governance. Legal treatises define a state as: An entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities. Thus, a "defined territory" (a land base) is essential to the existence and formation of the NHGE. That land base will be the subject of heated negotiations. The state govemment will undoubtedly resist transferring income-producing state lands, ceded or otherwise, to the NHGE. And that is understandable. On the other hand, the NHGE must insist upon acquiring at least a share of those income-producing lands in order to provide a treasury for its own operations. OHA's inability over the past several years to recover payment, in land or cash, from the state for past use of ceded lands points up how difficult the issue of land ownership will be. Even within the Native Hawaiian community, there will be disputes over what lands should be owned by the NHGE. Many Native Hawaiians will insist on acquiring "legacy" lands, lands that are foundational to the re-establishment of the culture. Native Hawaiians must seek some "eommon ground" on that issue. Hamlet's soliloquy is very appropriate, don't you think? ■

Walter M. Heen TrustEE, ū'ahu