As Hawaii’s citizens wonder what the impact of the Akaka Bill will be if it becomes law this year, it is instructive to review U.S. Senator Daniel Inouye’s view on the range of powers native American governments should have.
In 2003, Senator Inouye introduced Senate Bill 578 in the U.S. Senate. The Bill was intended to expand the authority of tribal governments so that they would have powers equal to that of states.
The Senator explicitly stated that tribes “should be as sovereign as any State in the Union.” His goal was to override recent rulings of the U.S. Supreme Court that limited the ability of tribal governments to apply tribal civil and criminal law to non-Indians who lived on or visited tribal lands. Essentially the Court ruled that federal and state law, not tribal law, would apply to non-Indians when they are on tribal lands.
Senator Inouye chose the Homeland Security Act as the vehicle for expanding tribal authority, He proposed to amend the Act in literally dozens of places by inserting the word “tribe” or “tribal” wherever the word “State” appeared, thus giving tribes the same powers as States. And, of course, this would terminate the sovereignty that States formerly had over non-Indians while they were on tribal lands.
Strong objections from civil rights groups forced Inouye to withdraw the Bill.
On January 25, 2005, Senator Inouye, one of the most powerful U.S. Senators, conceded that Federal Indian law does not provide the authority for Congress to create a Native Hawaiian governing entity.
Nevertheless, Akaka bill supporters’ main argument remains that the bill would only give Native Hawaiians the same recognition as given to Native Americans. But the shared ancestry Native Hawaiians claim is not sufficient.
Congress only has the authority to recognize existing tribes: self-governing groups in distinctly Indian communities that have existed continuously from historic times to the present. But in no sense can Native Hawaiians as defined in the Akaka bill be considered to be a separate and distinct self governing group. They are dispersed throughout the world and have assimilated into the thousands of different places where they reside and are governed.
Clearly, despite Senator Inouye’s candid 2005 admission, Akaka supporters will argue that the situation that existed between States and Indian tribes exactly parallels what will be the case in Hawaii if the Akaka Bill passes. And under Section 8 of the Bill, negotiations will occur between the new Native Hawaiian entity, the State of Hawaii, and the federal government over “the exercise of civil and criminal jurisdiction” and “the delegation of governmental powers and authorities” to the new Hawaiian government. And Senator Inouye, as one of the most powerful U.S. Senators, will have significant influence on just what powers and authority any new Hawaiian government will have.
So those who are concerned about the Akaka Bill splitting the State of Hawaii into a crazy quilt of separate sovereign pieces need to carefully watch any such negotiations if the Akaka Bill becomes law.
Tom Macdonald is the Communications Director for Aloha for All
