LEO 'ELELE - TRUSTEE MESSAGES

This summer, this year

Haunani Apoliona, MSW, Chairperson, Trustee, At-large

Aloha e nā 'ōiwi 'ōlino. On June 11, 2009, U.S. Congressional House Committee on Natural Resources heard the Native Hawaiian Government Reorganization Act of 2009 H.R. 2314 (S. 1011). Panel testifiers included: Congresswoman Mazie Hirono; Micah Kāne, Chairperson, state Department of Hawaiian Home Lands; Haunani Apoliona, Chairperson, OHA; Gail Heriot, Commissioner, United States Commission on Civil Rights (USCCR); Michael Yaki, Commissioner, USCCR; and Christopher Bartolomucci, esquire, partner, Hogan & Hartson. Oral testimony excerpts on behalf of the Office of Hawaiian Affairs follow:

"Chairman Rahall, Representative Hastings and Members of the Committee on Natural Resources, I am Haunani Apoliona. I am Native Hawaiian, elected to the Office of Hawaiian Affairs Board of Trustees in 1996, and since 2000 have served as the Chairperson of the nine-member elected Board of Trustees, two of whom are here today.

Mahalo for holding this hearing today, it is a special day. It is a holiday in our State, King Kamehameha Day, honoring our Native Hawaiian King who unified the Hawaiian Islands. OHA testifies in support of H.R. 2314.

In 1978, Hawai'i's citizens convened a constitutional convention and Hawai'i voters later participated in a statewide referendum to ratify amendments to the Hawai'i State Constitution. Included in those amendments was the authorization to establish the Office of Hawaiian Affairs (OHA) as the State's institutional mechanism to afford the Native people of Hawai'i the means to give expression to their rights under Federal law and policy to self-determination and self-governance.

Since that time, OHA has administered resources, programs and services to Native Hawaiians, consistent with the provisions of the compact between the United States and the State of Hawai'i as embodied in the Hawai'i Statehood Act.

… Thousands of years before Western contact was first recorded in 1778, the Native people of Hawai'i occupied and exercised our sovereignty in the islands that were later to constitute the State of Hawai'i. In 1849, our government entered into a Treaty of Friendship, Commerce and Navigation with the United States. And while our government was later removed from power by armed force in 1893, our relationship with the United States did not end.

In the ensuing years, the U.S. Congress enacted well over 150 Federal statutes defining the contours of our political and legal relationship with the United States, and in 1993, the Congress and the President enacted Public Law 103-150, which extends an apology to the Native Hawaiian people for the United States' involvement in the overthrow of our government. Today, the indigenous, Native people of Hawai'i seek the full restoration of our Native government through the enactment of H.R. 2314.

We do so in recognition of the fundamental principle that the Federal policy of self-determination and self-governance assures that the three groups of America's indigenous, native people – American Indians, Alaska Natives and Native Hawaiians – have equal status under Federal law. Native governments in the continental United States and Alaska vary widely in governmental form and structure. Our government will be reorganized to reflect our unique history, our culture, values and traditions.

We don't seek to have our lands held in trust by the United States or the State of Hawai'i, or to have our assets managed by the Federal or State governments. We do not seek the establishment of new Federal programs. Federal statutes have already provided that authority and we have been successfully administering programs under those authorities for decades.

Specific to H.R. 2314, we wish to express the need for technical amendments with regard to certain portions of this bill; with these technical amendments, we believe the bill will better reflect our continuing political and legal relationship with the United States.

Of first and highest priority, we suggest that the definition of the term "Native Hawaiian" in H.R. 2314 be amended to conform with the definition of Native Hawaiians in existing Federal Statutes based on the U.S. political relationship with Native Hawaiians. This would be achieved by amending H.R. 2314 to additionally include the definition that has been used in all of the Federal statutes affecting Native Hawaiians for more than 30 years – the now standard definition of Native Hawaiians – which is "the lineal descendants of those aboriginal, indigenous native people who occupied and exercised sovereignty in the islands that comprise the State of Hawaii prior to 1778." We know of no statement or action by Congress that would suggest that the Congress intends to depart from this long-standing and well-established Federal law and policy definition that has been in place for more than 30 years, and which affords the maximum inclusion and participation by Native Hawaiians in the H.R. 2314 process.

Our second recommended technical amendment underscores a fundamental premise in Federal law – that one of the most basic aspects of sovereignty is defining membership or citizenship in a Native government. We believe that we can identify with a great measure of certainty, those who would qualify as "Native Hawaiians" under the Act, and capably certify to the Secretary of the Interior, that each person listed on a roll of those Native Hawaiians who elect to participate in the reorganization of a Native Hawaiian government meets the definitions of Native Hawaiian.

We do not believe it is a wise expenditure of Federal funds, in these tough economic times, to call for the establishment of yet another Federal Commission, when these matters can be effectively and efficiently addressed by the members of the Native Hawaiian community. Thus, we would recommend the elimination of section 7(b) of the bill, and additional conforming changes to other relevant parts of the bill that reference a Commission.

Finally, we believe Section 8 of H.R. 2314 requires review and technical amendments. Current language in this section appears to shield the United States from possible liability against claims of Native Hawaiians that are available to other citizens. For instance, the current claims section is written so broadly as to bar any claims that might arise out of a personal injury or death of a Native Hawaiian for which the Federal or State governments or their representatives bear direct responsibility. We do not believe that the Congress intends that this bill should deny Native Hawaiians their Constitutional rights.

Section 8 of H.R. 2314 provides a process for negotiations amongst the governments of the United States, the State of Hawai'i, and the Native Hawaiian people – that will address many matters, including assertions of historical wrongs committed by the United States or State of Hawai'i against Native Hawaiians. The bill further provides that once resolution of the various matters listed in H.R. 2314 has been achieved, there will be recommendations for implementing legislation submitted to the Committees of the U.S. Congress, and to the Governor and Legislature of the State of Hawai'i.

Accordingly, we firmly believe that H.R. 2314 already contains sufficient authorization for the three governments to address and resolve Native Hawaiian grievances through the negotiations process authorized in section 8(b)(1)(f) of the bill, and that the bill is not intended to alter the status quo prior to the outcome of that negotiation process.

However, as currently formulated, certain provisions of section 8 would alter the substantive rights of Native Hawaiians well before a negotiations process begins. Those provisions are internally inconsistent with the philosophy of Section 8 and should be amended.

MAHALO for the opportunity to testify in support of H.R. 2314 – there is no legislation at this time that is more important to our people ..." 7/48