This is an articulate, thorough, and impressive look at just what the Akaka Bill will mean...if it passes. Please read...and share.Donna------------------S. 1011, NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT OF 2009 (Introduced in the U.S. Senate) - J. KEHAULANI KAUANUITO: Kekuni Blaisdell, Mililani Trask, Terri Keko`olani, Donna Burns, Jon Osorio, Andre Perez, Kelii Collier, Ikaika HusseyFROM: J. Kehaulani KauanuiDATE: June 11th, 2009SUBJECT: S. 1011, Native Hawaiian Government Reorganization Act of 2009 (Introduced in the U.S. Senate).This analysis of the legislation is limited to the fundamental legal distinction between “Indian tribes” and a “foreign nations” under the US constitution and federal law with specific regard to the un-extinguished sovereignty of the Hawaiian Kingdom.Re: SECTION 1. SHORT TITLEThe name of this proposed legislation alone represents that which is problematic for Hawaiian sovereignty and nationhood under international law. The bill is titled the “Native Hawaiian Government Reorganization Act of 2009.” Embedded in this name is a fundamental historical lie; there is no attempt to reorganize a Native Hawaiian Government because the Hawaiian Kingdom was a 19th Century internationally recognized State that afforded citizenship status to more than just the indigenous Hawaiian people. To name this legislation in this way is to misconstrue the government to government relationship the United States had with the Kingdom, which was distinctly different from the nation-to-nation relationship between the United States and tribal nations within what are now known as the 48 contiguous states. The bill should more accurately be named “The Native Hawaiian Government Formation Act.”Re: SEC. 2. FINDINGS(1) Here the bill asserts that “the Constitution vests Congress with the authority to address the conditions of the indigenous, native people of the United States.” This refers to Article I, Section 8, Clause 3 of the US Constitution that reads, “Article I, Section 8, Clause 3, which states: “The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;”. The Supreme Court of the United States (SCOTUS) has ruled time and time again that this clause (also known as “the “Commerce Clause”) means the US federal government has total and complete power over tribal nations. The SCOTUS has not ruled that the US federal government has total and complete power over foreign nations. This is a very important distinction because this bill tries to assert that Native Hawaiians – formed into a Native Hawaiian governing entity – should be treated like a tribal nation.This is what is meant by the wording in part (3) of this same section of the bill where it says “the United States has a special political and legal relationship to promote the welfare of the native people of the United States, including Native Hawaiians.” In other words, the US government calls it “special” because it regards tribal nations as internal nations that are both domestic and dependent because they are forced within the broader legal boundary of the USA. The US government never legally regarded the Hawaiian Kingdom as domestic or dependent.Under the US Constitution, the Hawaiian Kingdom was regarded as a foreign nation, an independent sovereign state. The bill offensively refers to the treaties between the USA and the Hawaiian Kingdom to try and claim Native Hawaiians as a Native Nation with the special political and legal relationship to the USA like the relationship the US government asserts over tribal nations.None of the treaties between the Hawaiian Kingdom and the USA were treaties of cession. None of them ceded any sovereignty or territory to the US government. The treaties between the two independent States only negotiated the terms of friendship, commerce, and navigation. Even the treaty allowing the USA favored nation status to use Pearl Harbor was not about ceding territory; it only gave the US government use rights (not ownership).In (5) the bill refers to the Hawaiian Homes Commission Act of 1920 without any acknowledgement that the lands the US government “set aside” were 203,500 acres of the stolen 1. 8 million acres of Kingdom Crown and Government Lands. This part, and other parts throughout the bill, assert that all of these lands now belong to the USA or the State of Hawai`i, and therefore the bill masks the ongoing theft and illegitimate means by which the USA took Hawai`i. This is repeated throughout in all reference to Hawai`i becoming a state, references to the Kingdom and Crown lands as a “public trust,” and naming this land base “ceded lands.”Also note that in part (19) the bill states: “this Act provides a process within the framework of Federal law for the Native Hawaiian people to exercise their inherent rights as a distinct, indigenous, native community to reorganize a single Native Hawaiian governing entity for the purpose of giving expression to their rights as native people to self-determination and self-governance;”. In other words, this legislation is an attempt to maintain that there is no Hawaiian Kingdom, nor any claims to an independent nation. If passed, this is the part of the legislation that it the most troublesome when it comes to the legal concept of reorganization: that the will of the Hawaiian people will be (mis) represented as one of supporting the reorganization of the Hawaiian Kingdom into a Native Hawaiian governing entity.Re: SEC. 3. DEFINITIONSIn part (10)(A)(i)(I), the bill includes a definition of “Native Hawaiian” meaning an individual who is a direct lineal descendant of the “aboriginal, indigenous, native people” who: “resided in the islands that now comprise the State of Hawaii on or before January 1, 1893;”. It is important to note that this date chosen for this language pre-dates the US-backed overthrow of January 17, 1893. We need to draw attention to this in our communities, especially when proponents of the bill try to argue that this legislation would be a “first step” to Hawaiian sovereignty. It would be the last step precisely because it attempts to graft our genealogy of independence onto a different political lineage with regard to how the USA treats “Indian tribes” and “foreign nations” differently under US law. This is the part of “reorganization” that is most troublesome.This problem is also evident in part (15), which states: “The term ‘special political and legal relationship’ shall refer, except where differences are specifically indicated elsewhere in the Act, to the type of and nature of relationship the United States has with the several federally recognized Indian tribes.”Re: SEC. 4. UNITED STATES POLICY AND PURPOSE.This part explicitly states that the bill affirms that “Native Hawaiians are a unique and distinct, indigenous, native people with whom the United States has a special political and legal relationship;” and that “the United States has a special political and legal relationship with the Native Hawaiian people which includes promoting the welfare of Native Hawaiians.” Furthermore, it restates the earlier finding regarding congressional plenary power (3): “Congress possesses the authority under the Constitution, including but not limited to Article I, section 8, clause 3, to enact legislation to address the conditions of Native Hawaiians…” It should also be noted that the US Congress (the legislative branch of the federal government) has repeatedly delegated its authority to the executive branch of the US government. With regard to Indian tribes, it delegates its authority specifically to the US Department of the Interior. This matters for the purposes of the bill since the legislation proposes to empower the US Office for Native Hawaiian Relations, which falls within the US Department of the Interior, to coordinate the “special political and legal relationship between the United States and that Native Hawaiian governing entity.”Foreign nations do not have any relationship to the US Department of the Interior precisely because that department is about areas considered by the US government as “internal” to the USA (Indians tribes, US Island Territories, and National Parks). Foreign nations relate to the US Department of State.To underscore the point about the Native Hawaiian governing entity being limited to the interior (domestic) dependent nation, see part (5) here, which states that “Native Hawaiians have—(A) an inherent right to autonomy in their internal affairs; (B) an inherent right of self-determination and self-governance; (C) the right to reorganize a Native Hawaiian governing entity; and (D) the right to become economically self-sufficient” (underline added).Part (b) finally details the purpose of the bill: “to provide a process for the reorganization of the single Native Hawaiian governing entity and the reaffirmation of the special political and legal relationship between the United States and that Native Hawaiian governing entity for purposes of continuing a government-to-government relationship.” This bill only provides for an internal (domestic) dependent nation within the confines of the USA, not a “first step” towards sovereignty for anyone committed to restoring an independent Hawaiian nation.Re: SEC. 5. UNITED STATES OFFICE FOR NATIVE HAWAIIAN RELATIONSThis section details how the bill would provide a framework for the US Office for Native Hawaiian Relations to relation to the Native Hawaiian governing entity. The duties of the Office would include: continuing the process of reconciliation with the Native Hawaiian people in furtherance of the Apology Resolution according to US policy and coordinate the “special political and legal relationship” between the Native Hawaiian governing entity and the United States through the Secretary, and with all other Federal agencies and entities through the creation of an Interagency Coordinating Group, which is further explained in Sec. 6.The language of this part of the bill also requires the Office to consult with the Native Hawaiian Governing Entity “before taking any actions that may have the potential to significantly affect Native Hawaiian resources, rights, or lands,” except for anything having to do with the needs, wants and desires of the US Department of Defense. Part (c) states, “This section shall have no applicability to the Department of Defense or to any agency or component of the Department of Defense…” This means that US militarism in and from Hawaiian waters and lands can continue without end and that neither the Office nor the Native Hawaiian Governing Entity could do anything to stop it according to US law.Re: SEC. 6. NATIVE HAWAIIAN INTERAGENCY COORDINATING GROUP.This section outlines the composition and duties of the Interagency Coordinating Group in order to coordinate federal programs authorized to address the conditions of Native Hawaiians are administered by Federal agencies other than the Department of the Interior.This section reiterates the provision that “This section shall have no applicability to the Department of Defense or to any agency or component of the Department of Defense…” This means that US militarism in and from Hawaiian waters and lands can continue without end and that neither the Native Hawaiian Governing Entity nor the Interagency Coordinating Group could do anything to stop it according to US law.Re: SEC. 7. PROCESS FOR THE REORGANIZATION OF THE NATIVE HAWAIIAN GOVERNING ENTITY AND THE REAFFIRMATION OF THE SPECIAL POLITICAL AND LEGAL RELATIONSHIP BETWEEN THE UNITED STATES AND THE NATIVE HAWAIIAN GOVERNING ENTITY.This section outlines the process for the “reorganization” of a Native Hawaiian governing entity, which would be done through a Commission composed of 9 members appointed by the US Secretary of the Interior of who would prepare and maintain a roll of the adult members of the Native Hawaiian community (probably using Kau Inoa as the basis) who elect to participate in the “reorganization” of the single Native Hawaiian governing entity and certify that the adult members of the “Native Hawaiian” community proposed for inclusion on the roll. The members of the Commission would be required to make sure that all individuals on the roll meet the definition of Native Hawaiian in section 3(10): “an individual who is 1 of the indigenous, native people of Hawaii and who is a direct lineal descendant of the aboriginal, indigenous, native people who--(I) resided in the islands that now comprise the State of Hawaii on or before January 1, 1893; and(II) occupied and exercised sovereignty in the Hawaiian archipelago, including the area that now constitutes the State of Hawaii; or (ii) an individual who is 1 of the indigenous, native people of Hawaii and who was eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act.”Although this section states that each of the 9 individuals to be appointed by the US Secretary of the Interior must have: “(i) not less than 10 years of experience in the study and determination of Native Hawaiian genealogy; and (ii) an ability to read and translate into English documents written in the Hawaiian language,” it does not specify that the members of the Commission must be Native Hawaiian.This roll of individual, adult Native Hawaiians would eventually be published in the US federal register. It would serve as the basis for the eligibility of members of the Native Hawaiian community to determine participation in the formation of the Native Hawaiian governing entity.The adult members of the Native Hawaiian community listed on the roll published and approved roll are then empowered by the bill to “(i) develop criteria for candidates to be elected to serve on the Native Hawaiian Interim Governing Council; (ii) determine the structure of the Council; and (iii) elect members from individuals listed on the roll published under this subsection to the Council.”The Council would then represent those listed on the roll, conduct a referendum among those listed on the roll published for the purpose of determining the proposed elements of the organic governing documents of the Native Hawaiian governing entity. This would include setting the proposed criteria for citizenship of the Native Hawaiian Governing Entity, the proposed powers and authorities to be exercised by the Native Hawaiian governing entity (within US law), and the proposed privileges and immunities of the Native Hawaiian governing entity. This would also include the proposed civil rights and protection of the rights of the citizens of the Native Hawaiian governing entity and all persons affected by the exercise of governmental powers and authorities of the Native Hawaiian governing entity” and other issues determines appropriate by the Council. The language here says “proposed” because they all of these elements are subject to the approval of the US Secretary of the Department of the Interior.The Council would then submit the organizing governing documents of the proposed Native Hawaiian governing entity to the Secretary who then can approve or disapprove of them using the criteria listed in part (4)(A). All elements must be consistent with applicable Federal law.Re: SEC. 8. REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY; NEGOTIATIONS; CLAIMSThis section reaffirms the US government’s position that it delegates US authority to the State of Hawai`i to address condition of Native Hawaiians under the Hawai`i state admissions act. With regard to negotiations, this section specifies that after the Native Hawaiian governing entity is created, both the United States and the State of Hawaii may enter into negotiations with the Native Hawaiian governing entity. This sets the bill apart from other forms of federal recognition of Native Nations, which do not typically allow the state into any part of the negotiations with the exception of matters related to Indian gaming.In this bill, the state of Hawai`i is allowed to sit at the table to negotiate over matters including: the transfer of lands, natural resources, and other assets, and the protection of existing rights related to such lands or resources; the exercise of governmental authority over any transferred lands, natural resources, and other assets, including land use; the exercise of civil and criminal jurisdiction; the delegation of governmental powers and authorities to the Native Hawaiian governing entity by the United States and the State of Hawaii; any residual responsibilities of the United States and the State of Hawaii; and grievances regarding assertions of historical wrongs committed against Native Hawaiians by the United States or by the State of Hawaii. Notice that none of these things are guaranteed in the bill—no land, no jurisdiction, no assets, no governmental power. They are all up for negotiation once representatives of a Native Hawaiian governing entity sit down with the federal and state agents. There is no equal footing here. All negotiations must take place within the framework of US federal law and policy with regard to Indian tribes and under US plenary power, where the USA asserts total and complete power.This section of the bill also includes a disclaimer that states that nothing in the Act cancreate a cause of action against the United States or any other entity or person, nor alter “existing law, including existing case law, regarding obligations on the part of the United States or the State of Hawaii with regard to Native Hawaiians or any Native Hawaiian entity.” Further more, it states that nothing in the bill can create any new obligation to Native Hawaiians under federal law. It also specifically outlines and protects the federal government through sovereign immunity to prevent lawsuits for breach of trust, land claims, resource-protection or resource-management claims, or similar types of claims brought by or on behalf of Native Hawaiians or the Native Hawaiian governing entity.It also protects the state of Hawai`i by asserting that it “retains its sovereign immunity, unless waived in accord with State law, to any claim, established under any source of law, regarding Native Hawaiians, that existed prior to the enactment of this Act.”Re: SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWSThis section clarifies that certain laws pertaining to federally recognized Indian tribes would not apply to the Native Hawaiian governing entity. Note that all of these laws that exclude the Native Hawaiian governing entity happen to be laws that greatly benefit tribal nations. The Native Hawaiian governing entity would not be allowed to claim rights under Indian Gaming Regulatory Act. The Native Hawaiian governing entity would not be allowed to have the Secretary of the Interior shall not take land into trust on behalf of the native Hawaiian governing entity. This is important because only land held in trust by the federal government on behalf of Native Nations is allowed to be used by Indian tribes as part of their sovereign land base where they can assert jurisdiction. The Native Hawaiian governing entity would not be allowed to reply on The Indian Trade and Intercourse Act to challenge how the State of Hawaii acquired the Hawaiian Kingdom Crown and Government Lands. No other Native Hawaiian group would be eligible for recognition under the Federal Acknowledgment Process. The Native Hawaiian governing entity would not be eligible for Indian Programs and ServicesMost notably, this section of the bill (e) states that “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.” It further states that “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).” In other words, when the representatives of the Native Hawaiian governing entity sit at the table to negotiate with the federal and state agents, they cannot negotiate for and civil or criminal jurisdiction over any land. In order to do so, there would need to be more legislation passed.Re: SEC. 10. SEVERABILITYThis section merely states that if any US courts find any section of the Act invalid, that Congress intends for the remaining sections to still have force and effect.Re: SEC. 11. AUTHORIZATION OF APPROPRIATIONSThis section specifics that if the bill passes, that there be funds appropriated so that the legislation can be properly enacted to form the Commission, the roll, the organic governing documents, and other activities relating to the formation of a Native Hawaiian governing entity.By Terrilee Kekoolani at 06/12/2009 - 08:15 Add new comment
Mahalo Tane and Pomai for adding even more explanation...and thereby more clarity to this Bill DESIGNED (yes...that meeans "on purpose") in order to have Hawaiians/Kanaka Maoli...and also Hawaiian Kingdom Nationals...sign off and relinquish all future RIGHTS and CLAIMS to that independence we established in our Not-So-Distant past.
If the U.S. should pass this unlawful bill, Hawai'i nationals should NOT participate in it but continue our protest and fight for truth and justice. What of our nationals not of na iwi? They are condemned as being U.S. citizens of the occupier. The other fact that people miss is U.S. past history of how they handle their indigenous groups. As easily as they recognize tribes in this fashion, they can easily unrecognize any of these indigenous tribes. There will be only a few Native Haawaiians that will profit off of this entity for personal gain including getting rich over the demise of the Native Hawaiians. Once the U.S. gets what it wants; it can dissolve this entity anytime it pleases. If they can renege on our treaties as a foreign nation, can you imagine what they will do with this entity of theirs? The play on semantics is conniving and deceitful. Anyone that supports this bill commits high treason abetting the ongoing conspiracy or they are horribly naive.
The ONLY solution is for the U.S. to de-occupy the Hawaiian Kingdom, make restitution and reparations for the injury it is commiting against the Hawai'i nation, and restore its government and true status of the sovereign nation-state status it had prior to the U.S. invasion and belligerent occupation of the Hawaiian Kingdom.
The U.S. cannot prove that they are legally and lawfully here in Hawai'i and that they own Hawai'i. Do we want to give up our nation and surrender it to the U.S.? Are you willing to give up your Hawai'i National status and become a third-class citizen of the U.S.A.? A nation within a nation is actually called belligerent occupation.
A defeatist would say the Bill is better than nothing and have lost even before the seditious Bill is passed. The U.S. never had the consent of the Hawai'i nationals and U.S. Congress rejected the treaty of annexation submitted by their puppet government, the Republic of Hawaii. There is NO treaty of annexation whereby transferring and ceding our territory to the U.S.A. The U.S. is continuously violating the laws of occupation and blatantly defies our neutrality status.
For your childrens sake and that of their children's children; reject this bill and do not participate in the entity the U.S. is creating. Why live a lie?
ALOHA Kakou, e Hawaii, Once more I say that the AKaKa Bill is in violation of the constitution of the United States. There is no way that the Congress of the United States can recognize the Indigenous Native People of the Hawaiian Kingdom nation as Native Americans. The AKaKa BILL does not create any form of Native Hawaiian government. The AKaKA BILL is HEWA. The AKaKa BILL in not worth the paper that it is printed on. E Ola Mau Ke Aupuni Moi o Hawaii, He Hawaii Au, He Hawaii Makou, o Pomaikaiokalani, Hawaiian Kingdom National who refuse to surrender my Freedom to the AKaKa BIL.
Comments
Reorganize? Recognize? I say....
REORGANIZE YOURSELF....AND CLEAN UP YOUR OWN ACT!
Donna
The ONLY solution is for the U.S. to de-occupy the Hawaiian Kingdom, make restitution and reparations for the injury it is commiting against the Hawai'i nation, and restore its government and true status of the sovereign nation-state status it had prior to the U.S. invasion and belligerent occupation of the Hawaiian Kingdom.
The U.S. cannot prove that they are legally and lawfully here in Hawai'i and that they own Hawai'i. Do we want to give up our nation and surrender it to the U.S.? Are you willing to give up your Hawai'i National status and become a third-class citizen of the U.S.A.? A nation within a nation is actually called belligerent occupation.
A defeatist would say the Bill is better than nothing and have lost even before the seditious Bill is passed. The U.S. never had the consent of the Hawai'i nationals and U.S. Congress rejected the treaty of annexation submitted by their puppet government, the Republic of Hawaii. There is NO treaty of annexation whereby transferring and ceding our territory to the U.S.A. The U.S. is continuously violating the laws of occupation and blatantly defies our neutrality status.
For your childrens sake and that of their children's children; reject this bill and do not participate in the entity the U.S. is creating. Why live a lie?