Akaka Bill amended to address State administration’s concerns

HONOLULU—Gov. Linda Lingle released a statement today in approval of changes made to the Native Hawaiian Reorganization Act, known as the “Akaka Bill.” Senators Daniel Inouye and Daniel Akaka amended the bill to address concerns expressed by the State administration.

Attorney General Mark Bennett represented the State in discussions with the senators’ staffs regarding three changes to the language approved by the U.S. House of Representatives in H.R. 2314.

First, language that explicitly exempts the Native Hawaiian Governing Entity from certain State (and County) regulation (section 9(c)(3)(I)) will now read:

“(I) Governmental, nonbusiness, noncommercial activities undertaken by the Native Hawaiian governing entity, or by a corporation or other association or entity wholly owned by the Native Hawaiian governing entity, shall not be subject to the regulatory or taxation authority of the State of Hawaii, except shall be subject to the State’s authority to regulate activities for the protection of the public health or safety until such time as the Native Hawaiian governing entity and the State of Hawaii come to an interim agreement approved by the secretary governing the extent of such regulation and based on the Secretary’s determination that the interim agreement is consistent with applicable federal law.”

The current (unamended) language states: “Governmental, nonbusiness, noncommercial activities undertaken by the Native Hawaiian governing entity, or by a corporation or other association or entity wholly owned by the Native Hawaiian governing entity, shall not be subject to the regulatory or taxation authority of the State of Hawaii, provided that nothing in this subparagraph shall exempt any natural person (except an officer or employee of the Native Hawaiian governing entity, acting within the scope of his or her authority), from the regulatory, taxation, or other authority of the State of Hawaii. In determining whether an activity is covered by this subparagraph, due consideration shall be given to the constraints described in subparagraphs (A), (F), and (G).”

Second, the provisions of the bill granting the Native Hawaiian Governing Entity limited sovereign immunity will explicitly provide: “The Native Hawaiian governing entity shall not be immune from any law suit brought by the State of Hawaii to enforce the State’s regulatory authority recognized in this Act.”

Finally, a new provision will be added to the bill stating: 

“Any other provision of this Act notwithstanding, the officers and employees of the Native Hawaiian governing entity shall not be immune from the criminal laws of the State of Hawaii, and the State of Hawaii shall retain its authority to prosecute any violation of the State’s criminal laws.”

Amendments previously proposed in February were aimed at addressing concerns by Bennett and Lingle, who voiced strong opposition last December after supporting the Akaka Bill for seven years.

The Attorney General was concerned that previous revisions of H.R. 2314 put forward would “change the bill from one where the status quo and the relations between the United States, the State of Hawaii, and the Native Hawaiian governing entity can be changed only after negotiations and after passage of implementing legislation, to a model in which the status quo immediately changes, pursuant to an Indian law model.”

Bennett also expressed concern over the removal of language that makes clear that nothing in the bill shall be construed to constitute an override of Hawaii’s Eleventh Amendment sovereign immunity pursuant to section 5 of the Fourteenth Amendment of the U.S. Constitution, which ensures equal protection and due process to all people within states’ jurisdictions.