As you read this, remember that these attorneys were trained within the American System of Law, which is NOT the end all in terms of International Justice. Historically, as we all know, laws are MADE and laws are BROKEN. The Indigenous American Indians were Nations...not just tribes and under US law...all treaties were broken, and to this day...little justice was served. My Dad who was tranined as a attorney but decided against practicing law..."Because American Law is a matter of agreement only...and not based on REAL justice. Special interest groups are able to get laws made and rarely do they serve the majority and the best interest of ALL." With that in mind, look at American law within that context. Laws change, but JUSTICE does not.Donna-------------------Testimony Of The Native Hawaiian Bar Association Before The House CommitteeOn Natural Resources On The Akaka Bill, HR 2314, The Native HawaiianGovernment Reorganization ActJune 11, 2009.Our major concerns with H.R. 2314 are as follows:Role of the U.S. Department of DefenseThe exclusion of the U.S. Department of Defense (DOD) as it relates to theOffice for Native Hawaiian Relations and the Native Hawaiian InteragencyCoordinating Group (ICG) in section 5 (c) and section 6 (e) is unnecessary.First, the provisions contain no mandatory or onerous requirements for DOD.For the Native Hawaiian ICG, the President has the authority to designatewhich federal officials comprise the ICG.Second, DOD already interfaces with the Hawaiian community under a multitudeof federal laws, regulations, policies, and processes closely affiliatedwith DOI, including the Hawaiian Homes Commission Act, the Hawaiian HomeLands Recovery Act, the Native American Graves Protection and RepatriationAct, the Religious Freedom Restoration Act, the National EnvironmentalPolicy Act, and the National Historic Preservation Act, to name a few.Most recently in September 2008, the DOD invited the Hawaiian community toreview and comment on a draft DOD Native Hawaiian OrganizationalConsultation Protocol. The protocol is expected to provide guidance to DODcivilian and military personnel who are required to consult with NativeHawaiian organizations in accordance with the requirements of federal laws,regulations, and policies. During its outreach to the Hawaiian community,DOD worked closely with the state Office of Hawaiian Affairs in its efforts.DOD's draft protocol proposes language in its preamble recognizing thatNative Hawaiians have a unique heritage and the distinction of beingindigenous peoples that have maintained a rich tradition and culturedeveloped over generations.Lastly, the participation of federal agencies, including DOD, is a commonpractice and beneficial to the overall federal relationship with variouscommunities in our nation. Recent examples include the Interagency Group onInsular Areas (IGIA) and the Interagency Working Group on Asian Americansand Pacific Islanders (IWG). The IGIA provides advice on the establishmentor implementation of federal policies concerning American Samoa, Guam theU.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands.The IWG provides advice on improving access to federal opportunities forAsian Americans and Pacific Islanders. DOD participates in both interagencygroups.Role of the U.S. Department of JusticeThe bill should include the provision in previous versions of the Akaka billauthorizing the designation of a U.S. Department of Justice (DOJ)representative to assist the Interior Department¹s Office for NativeHawaiian Relations in the implementation and protection of the rights ofNative Hawaiians and their political, legal, and trust relationship with theUnited States, and upon the recognition of the Native Hawaiian government,the implementation and protection of the rights of the Native Hawaiiangovernment and its political, legal, and trust relationship with the UnitedStates.Given the history of federal treatment toward Native Hawaiians, includingthe inconsistency in its federal policy on self-determination and federalprograms, it is important to clarify that DOJ has a mandatory role tosafeguard the rights of Native Hawaiians in the federal-Native Hawaiianrelationship.Claims and Sovereignty ImmunityWe believe it is unnecessary and premature to include provisions on claimsand sovereign immunity prior to federal recognition of a Native HawaiianGovernment and recommend that these provisions under section 8(c) be takenout of the bill. Such provisions could be contemplated during implementationlegislation after federal recognition is conferred and negotiations betweenthe Native Hawaiian Governing Entity and the State of HawaiŒi and FederalGovernment are completed.The bill¹s provisions on claims and federal sovereign immunity appear to beoverly broad and may prohibit lawsuits by individual Native Hawaiians forclaims that could be pursued by any other member of the general population.For instance, under section 8(c)(2)(B), the Federal Government not onlyretains sovereign immunity but revokes any preexisting waiver of sovereignimmunity including waivers under the Administrative Procedures Act and theQuiet Title Act. Moreover, this revocation appears to apply to claims ofindividual Native Hawaiians, not just possible claims of the Native Hawaiiangoverning entity. Thus, a Native Hawaiian who owns land next to a FederalGovernment facility and wishes to bring a quiet title action within theapplicable 12-year statute of limitations against the United States toclarify boundaries would be foreclosed from doing so, but any other personin similar circumstances could bring such an action. Under a literal readingof the provision, this would be the result whether or not the NativeHawaiian lived in HawaiŒi or the property was located in HawaiŒi.The negative impacts of this provision are also amplified in section8(c)(2)(C) by applying the prohibition to ³claims of a similar nature andclaims arising out of the same nucleus of operative facts[.]² The provisiongoes on to state that such claims would be rendered nonjusticiable whenbrought by any plaintiff ³other than the Federal Government.² This provisionthus creates the situation in which only the Federal Government can bringclaims against itself surely an anomalous result and one that cannot havebeen purposefully intended.The federal sovereign immunity provisions also raise strong Equal Protectionconcerns in prohibiting claims by Native Hawaiians in situations whereothers could bring claims. They also create an extraordinarily unusualcircumstance in which Native Hawaiians are barred from bringing an actionand allowing only the Federal Government to bring an action against itself.ConclusionIn summary, we look forward to further discussions on the concerns raised inour testimony and will continue to review other areas of the bill, includingthe issues of state sovereign immunity and civil and criminal jurisdiction.Self-determination is a critical issue for our Hawaiian community. We wishto participate in this process and continue the progress made with ourFederal Government since the enactment into law of the 1993 ApologyResolution (P.L. 103-150) and the reconciliation efforts previouslyinitiated by the Departments of Interior and Justice and reflected in their2000 report ³From Mauka to Makai: The River of Justice Must Flow Freely.²
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