Akaka Substitute Comparison

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Back to Correcting Akaka

The vast majority of the Akaka Bill (S.147) is unchanged by the proposed amendements of September 2005. None of the changes materially affect the criticism of the race-based nature of the bill, nor the recommendation of the United States Commission on Civil Rights, which read:

The Commission recommends against passage of the Native Hawaiian Government Reorganization Act of 2005 (S. 147) as reported out of committee on May 16, 2005, or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.

Despite the changes made to weaken the provisions of a "Native Hawaiian governing entity", the basic issue of using race to define this group is not addressed by any amendment proposed to date.

For Akaka's take on the changes to the bill, see this synopsis prepared by Akaka.

Here is a detailed list of the changes:

Section 2

Paragraph 3

  • "responsibility" changed to "relationship"

Paragraph 15

  • "distinct native community" changed to "single distinct native community"

Paragraph 19

  • "Native Hawaiian governing entity" changed to "single Native Hawaiian governing entity"

Paragraph 20

Subsection A

  • "responsibility" changed to "political and legal relationship"

Paragraph 21

Subsection B

Old text New text
"authority to enforce the trust, including the exclusive right of the United States to consent to any actions affecting the lands that comprise the corpus of" "exclusive right of the United States to consent to any actions affecting the lands included in"

Paragraph 22

Subsection C

  • "political and legal relationship" changed to "special political and legal relationship"

Subsection D

  • "special trust relationship" changed to "special relationship"

Paragraph 23

  • "political and legal relationship" changed to "special political and legal relationship"

Section 3

Paragraph 10

Subsection A

  • "political and legal relationship" changed to "special political and legal relationship"

Paragraph 15

New paragraph
SPECIAL POLITICAL AND LEGAL RELATIONSHIP- The term 'special political and legal relationship' shall refer, except where differences are specifically indicated elsewhere in the Act, to the type of and nature of relationship the United States has with the several federally recognized Indian tribes.

Section 4

Paragraph b

  • "Native Hawaiian governing entity" changed to "single Native Hawaiian governing entity"
  • "political and legal relationship" changed to "special political and legal relationship"
  • "the Native Hawaiian governing entity" changed to "that Native Hawaiian governing entity"

Section 5

Paragraph b

Subsection 2

  • "Native Hawaiian governing entity" changed to "single Native Hawaiian governing entity"
  • "political and legal relationship" changed to "special political and legal relationship"

Subsection 4

  • "the Governor of the State of Hawaii and relevant agencies of the State of Hawaii" changed to "and the State of Hawaii"

Paragraph c

New paragraph
APPLICABILITY TO DEPARTMENT OF DEFENSE- This section shall have no applicability to the Department of Defense or to any agency or component of the Department of Defense, but the Secretary of Defense may designate 1 or more officials as liaison to the Office.

Section 6

Paragraph d

Subsection 2

Old text New text
"ensure that each Federal agency develops a policy on consultation with the Native Hawaiian people, and upon the reaffirmation of the political and legal relationship between the Native Hawaiian governing entity and the United States, consultation with the Native Hawaiian governing entity; and" "consult with the Native Hawaiian governing entity, through the coordination referred to in section 6(d)(1), but the consultation obligation established in this provision shall apply only after the satisfaction of all of the conditions referred to in section 7(c)(6); and"

Paragraph 3

New paragraph
APPLICABILITY TO DEPARTMENT OF DEFENSE- This section shall have no applicability to the Department of Defense or to any agency or component of the Department of Defense, but the Secretary of Defense may designate 1 or more officials as liaison to the Interagency Coordinating Group.

Section 7

  • "political and legal relationship" changed to "special political and legal relationship"

Paragraph a

  • "Native Hawaiian governing entity" changed to "single Native Hawaiian governing entity"

Paragraph b

Subsection 1

Subsubsection A

  • "Native Hawaiian governing entity" changed to "single Native Hawaiian governing entity"

Subsection 2

Old text New text

(A) APPOINTMENT- Within 180 days of the date of enactment of this Act, the Secretary shall appoint the members of the Commission in accordance with subclause (B). Any vacancy on the Commission shall not affect its powers and shall be filled in the same manner as the original appointment.

(B) REQUIREMENTS- The members of the Commission shall be Native Hawaiian, as defined in section 3(10), and shall have expertise in the determination of Native Hawaiian ancestry and lineal descendancy.

(A) APPOINTMENT-

(i) IN GENERAL- Not later than 180 days after the date of enactment of this Act, the Secretary shall appoint the members of the Commission in accordance with subparagraph (B).
(ii) CONSIDERATION- In making an appointment under clause (i), the Secretary may take into consideration a recommendation made by any Native Hawaiian organization.

(B) REQUIREMENTS- Each member of the Commission shall demonstrate, as determined by the Secretary-

(i) not less than 10 years of experience in the study and determination of Native Hawaiian genealogy; and
(ii) an ability to read and translate into English documents written in the Hawaiian language.

(C) VACANCIES- A vacancy on the Commission-

(i) shall not affect the powers of the Commission; and
(ii) shall be filled in the same manner as the original appointment."

Subsection 8

  • "political and legal relationship" changed to "special political and legal relationship"

Paragraph c

Subsection 6

  • "political and legal relationship" changed to "special political and legal relationship"

Section 8

Paragraph b

Subsection 1

  • "political and legal relationship" changed to "special political and legal relationship"
Added subsubsection f
"grievances regarding assertions of historical wrongs committed against Native Hawaiians by the United States or by the State of Hawaii."

Paragraph c

Old text New text

(1) IN GENERAL- Nothing in this Act serves as a settlement of any claim against the United States.

(2) STATUTE OF LIMITATIONS- Any claim against the United States arising under Federal law that-

(A) is in existence on the date of enactment of this Act;
(B) is asserted by the Native Hawaiian governing entity on behalf of the Native Hawaiian people; and
(C) relates to the legal and political relationship between the United States and the Native Hawaiian people; shall be brought in the court of jurisdiction over such claims not later than 20 years after the date on which Federal recognition is extended to the Native Hawaiian governing entity under section 7(c)(6).

(1) DISCLAIMERS- Nothing in this Act-

(A) creates a cause of action against the United States or any other entity or person;
(B) alters existing law, including existing case law, regarding obligations on the part of the United States or the State of Hawaii with regard to Native Hawaiians or any Native Hawaiian entity;
(C) creates obligations that did not exist in any source of Federal law prior to the date of enactment of this Act; or
(D) establishes authority for the recognition of Native Hawaiian groups other than the single Native Hawaiian Governing Entity.

(2) FEDERAL SOVEREIGN IMMUNITY-

(A) SPECIFIC PURPOSE- Nothing in this Act is intended to create or allow to be maintained in any court any potential breach-of trust actions, land claims, resource-protection or resource-management claims, or similar types of claims brought by or on behalf of Native Hawaiians or the Native Hawaiian governing entity for equitable, monetary, or Administrative Procedure Act-based relief against the United States or the State of Hawaii, whether or not such claims specifically assert an alleged breach of trust, call for an accounting, seek declaratory relief, or seek the recovery of or compensation for lands once held by Native Hawaiians.
(B) ESTABLISHMENT AND RETENTION OF SOVEREIGN IMMUNITY- To effectuate the ends expressed in section 8(c)(1) and 8(c)(2)(A), and notwithstanding any other provision of Federal law, the United States retains its sovereign immunity to any claim that existed prior to the enactment of this Act (including, but not limited to, any claim based in whole or in part on past events), and which could be brought by Native Hawaiians or any Native Hawaiian governing entity. Nor shall any preexisting waiver of sovereign immunity (including, but not limited to, waivers set forth in chapter 7 of part I of title 5, United States Code, and sections 1505 and 2409a of title 28, United States Code) be applicable to any such claims. This complete retention or reclaiming of sovereign immunity also applies to every claim that might attempt to rely on this Act for support, without regard to the source of law under which any such claim might be asserted.
(C) EFFECT- It is the general effect of section 8(c)(2)(B) that any claims that may already have accrued and might be brought against the United States, including any claims of the types specifically referred to in section 8(c)(2)(A), along with both claims of a similar nature and claims arising out of the same nucleus of operative facts as could give rise to claims of the specific types referred to in section 8(c)(2)(A), be rendered nonjusticiable in suits brought by plaintiffs other than the Federal Government.

(3) STATE SOVEREIGNTY IMMUNITY-

(A) Notwithstanding any other provision of Federal law, the State retains its sovereign immunity, unless waived in accord with State law, to any claim, established under any source of law, regarding Native Hawaiians, that existed prior to the enactment of this Act.
(B) Nothing in this Act shall be construed to constitute an override pursuant to section 5 of the Fourteenth Amendment of State sovereign immunity held under the Eleventh Amendment.

Section 9

Old text New text

(a) INDIAN GAMING REGULATORY ACT- Nothing in this Act shall be construed to authorize the Native Hawaiian governing entity to conduct gaming activities under the authority of the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.).

(b) INDIAN PROGRAMS AND SERVICES- Notwithstanding section 7(c)(6), because of the eligibility of the Native Hawaiian governing entity and its citizens for Native Hawaiian programs and services in accordance with subsection (c), nothing in this Act provides an authorization for eligibility to participate in any Indian program or service to any individual or entity not otherwise eligible for the program or service under applicable Federal law.

(c) NATIVE HAWAIIAN PROGRAMS AND SERVICES- The Native Hawaiian governing entity and its citizens shall be eligible for Native Hawaiian programs and services to the extent and in the manner provided by other applicable laws.

(a) INDIAN GAMING REGULATORY ACT-

(1) The Native Hawaiian governing entity and Native Hawaiians may not conduct gaming activities as a matter of claimed inherent authority or under the authority of any Federal law, including the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) or under any regulations thereunder promulgated by the Secretary or the National Indian Gaming Commission.
(2) The foregoing prohibition in section 9(a)(1) on the use of Indian Gaming Regulatory Act and inherent authority to game apply regardless of whether gaming by Native Hawaiians or the Native Hawaiian governing entity would be located on land within the State of Hawaii or within any other State or Territory of the United States.

(b) TAKING LAND INTO TRUST- Notwithstanding any other provision of law, including but not limited to part 151 of title 25, Code of Federal Regulations, the Secretary shall not take land into trust on behalf of individuals or groups claiming to be Native Hawaiian or on be half of the native Hawaiian governing entity.

(c) REAL PROPERTY TRANSFERS- The Indian Trade and Intercourse Act (25 U.S.C. 177), does not, has never, and will not apply after enactment to lands or lands transfers present, past, or future, in the State of Hawaii. If despite the expression of this intent herein, a court were to construe the Trade and Intercourse Act to apply to lands or land transfers in Hawaii before the date of enactment of this Act, then any transfer of land or natural resources located within the State of Hawaii prior to the date of enactment of this Act, by or on behalf of the Native Hawaiian people, or individual Native Hawaiians, shall be deemed to have been made in accordance with the Indian Trade and Intercourse Act and any other provision of Federal law that specifically applies to transfers of land or natural resources from, by, or on behalf of an Indian tribe, Native Hawaiians, or Native Hawaiian entities.

(d) SINGLE GOVERNING ENTITY- This Act will result in the recognition of the single Native Hawaiian governing entity. Additional Native Hawaiian groups shall not be eligible for acknowledgment pursuant to the Federal Acknowledgment Process set forth in part 83 of title 25 of the Code of Federal Regulations or any other administrative acknowledgment or recognition process.

(e) JURISDICTION- Nothing in this Act alters the civil or criminal jurisdiction of the United States or the State of Hawaii over lands and persons within the State of Hawaii. The status quo of Federal and State jurisdiction can change only as a result of further legislation, if any, enacted after the conclusion, in relevant part, of the negotiation process established in section 8(b).

(f) INDIAN PROGRAMS AND SERVICES- Notwithstanding section 7(c)(6), because of the eligibility of the Native Hawaiian governing entity and its citizens for Native Hawaiian programs and services in accordance with subsection (g), nothing in this Act provides an authorization for eligibility to participate in any Indian program or service to any individual or entity not otherwise eligible for the program or service under applicable Federal law.

(g) NATIVE HAWAIIAN PROGRAMS AND SERVICES- The Native Hawaiian governing entity and its citizens shall be eligible for Native Hawaiian programs and services to the extent and in the manner provided by other applicable laws.