S.344, in and of itself, does not protect Native Hawaiian programs.
However, S.344 does afford Native Hawaiians some control over
their destiny by providing the Native Hawaiian governing entity
the ability to work directly with the federal government to protect
programs that impact Native Hawaiians.
In 1996, the U.S. Supreme Court decision in Rice v. Cayetano
declared the Office of Hawaiian Affairs elections unconstitutional
based on the 15th Amendment, which says that state-sponsored elections
must not be based on race, setting the precedent for future court
challenges on Native Hawaiian programs and entitlements.
The Arakaki et. al v. State of Hawai'i case currently
challenges the very existence of OHA and the Department of Hawaiian
Home Lands (DHHL) on the grounds that Native Hawaiian entitlements
are race-based and thus discriminatory against non-Hawaiian taxpayers.
Without the security that a federally recognized Native Hawaiian
governing entity can provide, the future of OHA, DHHL and other
Native Hawaiian programs hangs in the balance.
The Native Hawaiian federal recognition bill, also known as the
Akaka/Stevens bill or S. 344, raises many questions regarding
the future of the Native Hawaiian people. However, not all of
these questions can be answered through the bill itself. To better
understand the types of issues federal recognition may address,
you have to understand what the legislation really says.
First, through S.344, Congress finds that Native Hawaiians are
the indigenous people of the Hawaiian archipelago. By recognizing
Native Hawaiians as the indigenous people of the Hawaiian Islands,
the United States recognizes Native Hawaiians as a political entity
rather than an entity based on race. According to the Congress,
this provides Native Hawaiians a special political and legal relationship
with the United States similar to the government-to-government
relationship between the federal government and American Indians
and Alaska Natives.
The bill articulates that Native Hawaiians have an inherent right
of self-determination and have the right to reorganize a Native
Hawaiian governing entity. S.344 authorizes the process for the
establishment and federal recognition of a Native Hawaiian governing
entity for the purpose of continuing a government-to-government
The federal recognition bill also authorizes a roll for adult
Native Hawaiians who wish to participate in the reorganization
of a Native Hawaiian government. Native Hawaiians who wish to
participate in the roll must be at least18 years old and provide
documentation that they are the direct lineal descendants of an
indigenous person of the Hawaiian Islands. According to S.344,
there are two ways a person can prove lineal descent. A person
eligible for the roll must show that they are a direct lineal
descendent of (1) an indigenous person who resided in the Hawaiian
Islands, on or before Jan. 1, 1893 or (2) an indigenous person
who was eligible for programs under the Hawaiian Homes Commission
Act in 1921.
If the Akaka/Stevens bill is enacted and the Hawaiian people
choose to gain federal recognition, nation-within-a-nation, the
Native Hawaiian governing entity would then work directly with
the federal government and the State of Hawaii to protect
Native Hawaiian lands and programs that affect Native Hawaiians.
While the federal recognition bill authorizes the formation of
a Native Hawaiian governing entity, the bill itself does not prescribe
the form of government this entity will become. S.344 creates
the process for the establishment of the Native Hawaiian governing
entity and a process for federal recognition. The Native Hawaiian
people may exercise their right to self-determination by selecting
another form of government including free association or total