Hawaii Attorney General and Governor Express Opposition to Altered Version of Native Hawaiian Recognition Bill
Hastings: “Consideration of this bill should not go forward”

WASHINGTON, D.C., December 15, 2009 - Hawaii Attorney General Mark Bennett sent a letter to House Natural Resources Committee Chairman Nick Rahall and Ranking Member Doc Hastings stating his and Governor Linda Lingle’s “strong opposition” to the latest version of H.R. 2314, the Native Hawaiian Government Reorganization Act of 2009, which is slated to be offered as a substitute amendment by Rep. Neil Abercrombie during a full committee markup tomorrow. Both Governor Lingle and Attorney General Bennett have been active, outspoken advocates of the original text of H.R. 2314, which has been rewritten and unveiled only after the Committee suddenly announced its intention last Friday to markup and advance the altered text.

Ranking Member Hastings will be sending a letter tonight to Chairman Rahall requesting that H.R. 2314 be removed from consideration at tomorrow’s markup.

Although many Committee Republicans have fundamental concerns with the Native Hawaiian Recognition Bill, the Governor and Attorney General of Hawaii’s strong opposition to the rewritten bill is extremely disconcerting and raises serious red flags,” said Ranking Member Doc Hastings. Consideration of this bill should not go forward when the people and government officials who would be directly impacted by this legislation have raised serious objections and have not even had a chance to properly review the text. Rather than rushing this bill through a hasty markup, Chairman Rahall must move consideration to a future date that will allow the rewritten text to be thoroughly analyzed and vetted by all parties.”

Text of the letter from the Hawaii Attorney General:

The Honorable Nick J. Rahall, II, Chair
The Honorable Doc Hastings Ranking Minority Member
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, D.C. 20515

Re: H.R. 2314 -Native Hawaiian Government Reorganization Act

Dear Chair Rahall and Ranking Minority Member Hastings:

    As Hawaii's Attorney General and chief legal officer, I write to express the strong opposition of Hawaii Governor Linda Lingle and myself to many of the proposed changes (in a "markup") to the Native Hawaiian Government Reorganization Act, H.R. 2314, also known as the "Akaka Bill." It my understanding that H.R. 2314 will be marked-up in the House committee on Natural Resources on Wednesday, December 16, 2009. We were only provided copies of the proposed changes today by the Committee's Minority Staff (yesterday we received an informal copy of two sections of the new bill). None of the changes were drafted with our input or knowledge. As noted, we strongly oppose a number of the changes, but note we have not had the opportunity to carefully study and analyze many of the changes in the new bill.

    Governor Lingle and I have been strong advocates and supporters of the Akaka Bill for seven years. We have worked with the Hawaii Congressional Delegation to craft a bill that had strong bipartisan support. The version of the Akaka Bill which we support is the current version of H.R. 2314.

    The changes under consideration will completely change the nature of the Native Hawaiian governing entity. The current version of the bill states (in section 8(b)(3)):

"Any governmental authority or power to be exercised by the Native Hawaiian governing entity which is currently exercised by the State or Federal Governments shall be exercised by the Native Hawaiian governing entity only as agreed to in negotiations pursuant to section 8(b)(1) of this Act and beginning on the date on which legislation to implement such agreement has been enacted by the United States Congress, when applicable, and by the State of Hawaii, when applicable. This includes any required modifications to the Hawaii State Constitution in accordance with the Hawaii Revised Statutes." (Emphasis added).

    Section 9(b)(3) of the proposed new bill will change the above­ quoted language to the following wholly different language:

"The Native Hawaiian governing entity shall be vested with the inherent powers and privileges of self-government of a native government under existing law, except as set forth in section 10 (a). Said powers and privileges may be modified by agreement between the Native Hawaiian governing entity, the United States, and the State pursuant to paragraph (1), subject to the limit described by section l0 (a). Unless so agreed, nothing in this Act shall preempt Federal or State authority over Native Hawaiians or their property under existing law or authorize the State to tax or regulate the Native Hawaiian governing entity." (Emphasis added).

    The following language in the current bill (in section 9(e)) will be removed its entirety:

"(e) Jurisdiction-Nothing in this Act alters the civil or criminal jurisdiction of the United States or the State of Hawaii over lands and persons within the State of Hawaii. The status quo of Federal and State jurisdiction can change only as a result of further legislation, if any, enacted after the conclusion, in relevant part, of the negotiation process established in section 8(b)." (Emphasis added).

    The new bill will also provide in section l0(c) that "The [Native Hawaiian Interim Governing] council and the subsequent governing entity recognized under this Act shall be an Indian tribe [pursuant to certain sections of the Indian Civil Rights Act of 1968] ...." (Emphasis added).

    These changes, taken together, change the bill from one where the status quo and the relations between the United States, the State of Hawaii, and the Native Hawaiian governing entity can be changed only after negotiations and after passage of implementing legislation, to a model in which the status quo immediately changes, pursuant to an Indian law model.

    The magnitude and potential impact of such changes cannot be overstated. The present version of the bill preserves all the rights and interests of the State of Hawaii until the Congress and the State Legislature can evaluate the result of negotiations. The proposed revisions make immediate changes to the rights and interests of the State of Hawaii. These changes may immediately incorporate into the law governing Native Hawaiians a vast body of Indian law, much of which is unsuited for the State of Hawaii, and none of which (to our knowledge) has been evaluated for its impact on Hawaii.

    These changes are extensive, have been not part of any bill which we have supported, and have an enormous potential to negatively impact Hawaii and its citizens. We note, moreover, that there has been no public hearing reflecting this new model in at least the last seven years. The views of Hawaii's citizens, native Hawaiian and non-native Hawaiian alike, have not been heard (certainly not recently) with regard to this new model.

    The implications of forever changing the relationship between native Hawaiians and the State of Hawaii, and simply deciding native Hawaiians are an Indian tribe (for at least some purposes), are potentially enormous. We oppose these changes. And, we do so mindful of the fact that Governor Lingle and I have been among the strongest supporters of the Akaka Bill for seven years.

    We also note that the new bill has a new term­ "Qualified Native Hawaiian Constituent"—which is defined in six pages of the bill. There have never been public hearings on this new term and its significance, and we have not had the opportunity to study it in detail.

    We also oppose other changes to the bill, including removing the current language in section 8(c) (3) which sets forth the State of Hawaii's complete retention of its sovereign immunity (unless waived in accord with State law), and which makes clear that nothing in the bill shall be construed to constitute an override of Hawaii’s Eleventh Amendment sovereign immunity pursuant to section 5 of the Fourteenth Amendment.

    We continue to believe the Akaka Bill in its present form is important and needed legislation that has strong bipartisan support. We also believe that the changes we oppose will affect and erode the basis for such support.

    We respectfully ask that the changes to the Akaka Bill which we oppose not be made. We also respectfully ask the Committee to hold a public hearing with testimony, as the pew bill is so different from the current version. We are available to discuss the Akaka Bill and this letter at your convenience, and thank you in advance for your consideration of this letter.

Very truly yours,
/s
Mark J. Bennett
Attorney General
State of Hawaii

cc:     Members of the House Committee on Natural Resources Committee
        The Honorable Neil Abercrombie 
        The Honorable Mazie K. Hirono 
        The Honorable Daniel K. Akaka 
        The Honorable Daniel K. Inouye 
        Governor Linda Lingle

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