Over the past several years there has been a fair amount of theorizing about what will follow if The Hawaiian Government Reorganization Act of 2007, otherwise known as the Akaka Bill (S. 310 / H.R. 505), passes Congress and is signed into law. The bill has now passed in the U.S. House and is only a few votes short of the 60 votes needed to break a U.S. Senate filibuster.

Opponents of the Bill fear it will lead to a carving up of the state’s lands and imposition of a new set of civil, criminal, and tax laws that will be enforced on all people entering onto territory ceded to a new, sovereign, Native Hawaiian government. Supporters of the Bill claim little will change, except that Native Hawaiians will regain ownership of some lands wrongly taken away from their ancestors over a century ago.

The wording of the bill is vague enough that either supporters or opponents could be right. Everything will depend on terms of a negotiated settlement between Native Hawaiians, the Hawaii legislature, and the federal government. This can only take place AFTER the bill becomes law. At this point , no one can know for sure what the bill’s consequences will be.

But some actions taken and comments made several years ago by Senator Daniel Inouye, a major power on the Senate Indian Affairs Committee, may foreshadow what we can expect after passage.

In February 2003, Senator Inouye addressed the National Congress of American Indians (NCAI) and stated he would introduce a measure restoring full sovereignty to tribal governments. He stated his goal was to overturn recent rulings by the U.S. Supreme Court (Nevada v. Hicks and Atkinson v. Shirley) limiting the ability of tribal governments to apply tribal criminal and civil laws to non-Indians who lived on or visited tribal lands. The Court had ruled that since non-Indians could not be voting citizens of the tribe establishing these laws, they could not be subjected to them. Essentially, the Court ruling meant federal and state law, not tribal law, would apply to non-Indians when they are on tribal lands.

Inouye received hearty applause when he told the Indian audience “…you should be as sovereign as any state in the union.” Black’s Law Dictionary defines “sovereignty” as “the supreme, absolute, and uncontrollable power by which an independent state is governed.”

Inouye was as good as his word and introduced draft legislation in the Senate, known as Senate File 578, which would change the status of Indian tribes from being subordinate to the states they are located in (just as cities and counties are subordinate creatures of state governments) to a new sovereign status that would be independent of, and equal to, states.

Cleverly, with 9/11 still fresh in everyone’s mind, Inouye chose The Homeland Security Act as the vehicle to elevate tribes to equal status with the states. In literally dozens of places, Inouye proposed to amend the act by inserting the words “tribe” or “tribal” wherever the word state appeared, thus giving tribes the same powers as states while simultaneously terminating the sovereign authority states formerly had over non-Indians in tribal areas.

The net effect of making tribal powers equal to those of states would be to subject people who are not members of a tribe to the civil, criminal, and taxing authority of those tribal governments, thus denying them the protections of the U.S Constitution and the Bill of Rights. This is not a trivial matter, since close to 50 percent of the people who live on tribal lands, or who travel over them daily, are not Indians.

Fortunately, strong objections to Inouye’s proposal by civil rights groups forced him to withdraw the draft proposal and deny that his intent was to circumvent Supreme Court decisions.

The situation that existed between states and Indian tribes exactly parallels what will happen in Hawaii if the Akaka Bill passes and significant portions of “ceded” or public lands are transferred to a new Native Hawaiian government. Thousands of non-Hawaiians will be living on what will become Hawaiian government territory. Hundreds of thousands of non-Hawaiians will need to pass through Hawaiian government lands during their daily commute or when conducting business . Will these non-Hawaiians be subjected to civil and criminal laws enacted by the new Hawaiian government when they are on Hawaiian lands? Will citizens of the new Hawaiian government be exempt from most Hawaii state laws just as members of Indian tribes are exempt from state laws elsewhere in the U.S. ? One does not have to be paranoid to worry that the final outcome of the Akaka Bill will be the splitting of Hawaii into two separate entities with different governments and different laws. Nothing could be worse for our state.

-GIR-

Tom MacDonald is the former President and CEO of Hawaiian Trust Company and a member of the Grassroot Institute's Board of Scholars. He taught English at Stanford and at the State University of New York before making a total career change into the trust and investment business. He lives on Oahu.