A new version of the Akaka bill (“Native Hawaiian Government Reorganization Act of 2009”) was introduced on May 7th, and a hearing on the bill was held before the Senate Indian Affairs Committee on August 6th. The Senate bill, S1011, introduced by Senators Akaka and Inouye, seeks a measure of accountability for the US overthrown of the Kingdom of Hawaii in 1893. While the bill provides a process for obtaining Federal recognition of a Hawaiian government entity, it simultaneously places certain limitations on the powers of that entity, including prohibitions against gaming (for example gambling casinos) and prohibitions of taking land as “trust territory” (Indian trust territory is not necessarily subject to all state laws); and disallows the altering of any civil or criminal laws. There is also an identical House bill, H.R. 2314 introduced by Representatives Abercrombie and Hirano.

A summary of the proposed legislation is provided below. For more information including video webcasts of the August 6th Senate hearing on this bill go to Senator Akaka’s discussion here of the bill here, or here to just view some of the highlights from that Senate hearing.

The proposed Akaka bill is and should be about accountability for actions taken against the Hawaiian people. However we must all, Hawaiians and non-Hawaiians alike be accountable for our actions today. We must be accountable to each other promoting aloha and understanding and above all advancing a culture of malama the aina– and together protect this island from the mountains to the coastal waters. In doing so we should implement the State Constitution’s recognition of the government’s public trust responsibility to care for our land and water resources. A key function of the public trust obligation is that all government decision-making should be based on the Precautionary Principle. The Precautionary Principle requires that when there is uncertainty about the potential impact of a policy or action, the decision must be in favor of conservation of the resource. Take for example the question of allowing the use of GMOs (genetically modified organisms) . Given the uncertainty of this science and it long-term unforeseeable impacts the precautionary principle mandates prohibiting the use of GMOs on this island. Therefore I hope we can come together as one people –fellow stewards of this island - and work together against the use of GMOs here.
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The "Public Trust Doctrine" as set forth in the Hawaii Consitution provides as follows:
"For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people."

[Note Hawaii County challenged whether counties are required to implement this "Public Trust Doctrine". In 2006 the State Supreme Court ruled that Hawaii County, as a political subdivision of the State, is also required to implement the Public Trust requirements of the State Constitution.]
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Getting to Know the Issues: Brief Summary of the Akaka Bill
S. 1011 and H.R. 2314 as introduced May 7, 2009
Section 1 SHORT TITLE: This section explains that this Act may be cited as the ‘Native Hawaiian Government Reorganization Act of 2009′.

Section 2 FINDINGS: This section lists a number of things that Congress finds to be true and sets the foundation for the rest of the bill by explaining the facts that make the legislation possible and necessary. For example, Congress finds that the United States has the authority and a special trust responsibility to promote the welfare of the Native Hawaiian people, and that its past actions have repeatedly reaffirmed this responsibility.
Section 3 DEFINITIONS: This section defines language and terminology used in the rest of the bill.
Section 4 UNITED STATES POLICY and PURPOSE: This section reaffirms the United States policy on Native Hawaiians, the indigenous, people of Hawai’i, which states the United States’ commitment to the process of reconciliation. It also states the purpose of the bill is to provide a process for U.S. recognition of a reorganized Native Hawaiian government entity, and the reaffirmation of the political and legal relationship between the United States and the Native Hawaiian government for the purposes of continuing a government-to-government relationship.
Section 5 ESTABLISHMENT OF THE UNITED STATES OFFICE FOR NATIVE HAWAIIAN AFFAIRS: This section establishes an office within the Department of Interior’s Office of the Secretary to: 1) represent the United States in its relations with Native Hawaiians and their governing entity; 2) continue to coordinate the trust relationship with Native Hawaiians; 3) provide regular consultation with Native Hawaiians, federal agencies, and relevant State agencies, and 4) continue the process of reconciliation. This office serves as a single-point of contact for Native Hawaiians and their governing entity to access and deal with the federal government.
Section 6 NATIVE HAWAIIAN INTERAGENCY TASK FORCE: This section establishes an interagency task force made up of federal officials designated by the President. The task force helps to coordinate all federal agency policies that impact Native Hawaiians, their resources, rights or lands, and to assure that each federal agency develops a policy on consultation with the Native Hawaiian governing entity.
Section 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 of forming a Native Hawaiian government and the process of receiving federal recognition. This section provides for the establishment of a commission appointed by the Secretary of the Interior for the purpose of developing and maintaining a base roll listing of all adult members of the Native Hawaiian community who wish to participate in the reorganization of a Native Hawaiian government. This section also specifies the eligibility requirements for inclusion on the roll. Individuals included on the roll are able to elect a Native Hawaiian Interim Governing Council to create organic governing documents and hold elections for government officials. The Secretary reviews the organic governing documents and certifies that basic requirements, such as consistency with federal law, are met. After certification and the election of officers, the United States can formally extend federal recognition to the new Native Hawaiian government as the representative governing body of the Native Hawaiian people.
Section 8 REAFFIRMATION OF DELEGATION OF FEDERAL AUTHORITY; NEGOTIATIONS; CLAIMS: This section first reaffirms delegation in the Admission Act of federal authority to the State of Hawaii to address the conditions of Native Hawaiians. This section also authorizes the federal government to negotiate and enter into an agreement with the State of Hawaii and the Native Hawaiian government for the transfer and protection of lands, resources and assets; exercise of civil and criminal jurisdiction; delegation of governmental powers and authorities to the Native Hawaiian governing entity; grievances. This section also provides a process to submit proposed amendments to federal law that will enable the implementation of agreements, provides disclaimers stating that nothing in this act creates a cause of action against the United States, alters existing law regarding US obligations to Native Hawaiians, creates new obligations, or establishes authority for the recognition of other Native Hawaiian groups. This section also asserts federal and state sovereign immunity against potential breach of trust, land, resource protection or management claims brought by or on behalf of the Native Hawaiian governing entity; the subsection also retains sovereign immunity against pre-existing claims. Also in this section, the State retains its sovereign immunity, unless waived in accord with state law.

Section 9 APPLICABILITY OF CERTAIN FEDERAL LAWS: This section states that Gaming under the Indian Gaming Regulatory Act is prohibited and that Native Hawaiians have no inherent right to conduct gaming, in Hawaii or any other State or Territory; the Secretary will not take land into trust; no real property transfers will be allowed under the Indian Trade and Intercourse Act; there will be one Native Hawaiian entity recognized; the Act would not alter Federal or State civil or criminal jurisdiction; Native Hawaiians will not be authorized to participate in any Indian program or service not otherwise eligible for under Federal law; Native Hawaiian governing entity and citizens will be eligible for Native Hawaiian programs and services to the extent and manner provided in other applicable laws.
Section 10 SEVERABILITY: This section states that if any part of the bill is rendered invalid, Congress intends for the rest of the bill to continue in full force and effect.
Section 11 AUTHORIZATION OF APPROPRIATIONS: This section authorizes the appropriation of funds necessary to accomplish the activities in the bill.