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Senate considers Native Hawaiian reorganization act
Thursday, June 8, 2006

Update 1:30PM - The motion failed by a vote of 56 to 41. It needed 60 votes. The bill will not be debated further.

Update 12:55PM - The roll is being called on the motion to clear the bill for consideration.

Debate on a controversial measure to extend the self-governance policy to Native Hawaiians began in the Senate on Wednesday.

Sen. Daniel Akaka (D-Hawaii), the sponsor of the bill, and supporters took to the floor to argue for recognition of Hawaii's first inhabitants. They said Congress has the power to deal with Native Hawaiians in a manner similar to American Indians and Alaska Natives.

"For more than 100 years, Congress has treated Native Hawaiians in a manner similar to American Indians and Alaska Natives," said Akaka. "But, when it comes to having a process and federal policy on self-governance and self-determination, Native Hawaiians have not been treated equally."

The measure has broad support in Hawaii. State officials like Gov. Linda Lingle, the first Republican in that position in more than 40 years, have been lobbying heavily for Native Hawaiian recognition.

Several prominent Republicans in the Senate back the bill as well. Sen. Ted Stevens (R-Alaska), the author of an Alaska Native Claims Settlement Act, and Sen. Lisa Murkowski (R-Arizona), who sits on the Indian Affairs Committee, spoke in its favor yesterday.

But opposition from other Republicans puts the measure in a tough spot. Although the merits of Native Hawaiian recognition were discussed yesterday, the first hurdle the bill must overcome is procedural in nature.

Supporters must gather at least 60 votes on what is known as a cloture motion before proceeding on an up-or-down vote. The vote is scheduled this afternoon.

"We need to nip this in the bud," said Sen. Jeff Sessions (R-Alabama), one of the leading opponents.

Even if the bill survives cloture, it will face criticism from Republicans who argue that it creates a race-based government in violation of the U.S. Constitution. They said recognition will create a sovereign entity of more than 400,000 people whose only commonality is Native Hawaiian ancestry.

"Our Constitution guarantees equal opportunity without regard to race. This legislation does the opposite," said Sen. Lamar Alexander (R-Tennessee).

Another obstacle is the Bush administration. On the eve of today's vote, the Department of Justice sent a letter to Senate Majority Leader Bill Frist (R-Tennessee), who is in charge of Senate actions, to "strongly" oppose the measure.

"Given the substantial historical, structural and cultural differences between native Hawaiians as a group and recognized federal Indian tribes, tribal recognition is inappropriate for native Hawaiians and would still raise difficult constitutional issues," William E. Moschella, the assistant attorney general for legislative affairs.

S.147, the Native Hawaiian Government Reorganization Act, would define the policy of the United States towards Native Hawaiians. It provides a process by which the Interior Department would recognize a Native Hawaiian governing entity.

The measure prohibits the Native Hawaiian governing entity from engaging in gaming, bars Interior from acquiring additional trust lands for the entity and does not authorize any claims against the United States for mismanagement of land or other resources.

The National Congress of American Indians and the Alaska Federation of Natives support the bill. It includes a provision to ensure that resources for tribes and Alaska Natives are not diminished once a Native Hawaiian entity is reorganized.

Without reorganization and recognition, Native Hawaiian programs in Hawaii and in federal law face uncertain legal futures. The U.S. Supreme Court has already struck down an election in Hawaii as illegal because it was limited to people with Native ancestry.

Another critical case -- whether a prestigious private school can limit enrollment to Native Hawaiians -- is making its way through the courts. Native Hawaiians fear they will lose their trust lands, housing programs and other services and benefits without reorganization and recognition.

Native Hawaiian Recognition Bill:
Native Hawaiian Government Reorganization Act of 2005 (S.147)

Civil Rights Commission Report:
The Native Hawaiian Government Reorganization Act of 2005 (May 2006)

Civil Rights Commission Transcript:
January 20, 2006 Meeting

Rice v. Cayetano Resources:
Abstract, Audio and More

Rice v. Cayetano Election Rights Decision:
Syllabus | Opinion | Concurrence Dissent (Stevens) | Dissent (Ginsburg)

Senate Republican Policy Paper:
Why Congress Must Reject Race-Based Government for Native Hawaiians (June 2005)

Relevant Links:
US Commission on Civil Rights - http://www.usccr.gov
Native Hawaiian Federal Recognition Site - http://www.nativehawaiians.com