As members of the Native Hawaiian Bar Association board of directors, we support federal recognition for Native Hawaiians. Until critical changes are made to the current version of the Native Hawaiian Government Reorganization Act (the "Akaka bill"), we cannot give it our unqualified support.

The NHBA is a membership organization of Native Hawaiian attorneys, former judges and legal professionals that advocates on behalf of the Native Hawaiian community and promotes unity, cooperation and the exchange of ideas among its members and within the broader legal community. The NHBA has closely monitored the Akaka bill and worked very hard to secure a resolution from the American Bar Association supporting Native Hawaiian federal recognition.

We ask Hawai'i's congressional delegation to heed our call, and indeed the call of other Hawaiian organizations, for amendments to the current version of the bill. This version, largely negotiated with the Bush administration, contains harsh and unnecessary provisions that undermine reconciliation and self-determination.

As attorneys, we believe that the provisions prohibiting Native Hawaiians from bringing claims against the federal government are flawed. They are overly broad and may prohibit lawsuits by individual Native Hawaiians for claims that could be pursued by any other member of the general public, thereby violating the Equal Protection clause.

In one section, the federal government revokes any preexisting right to bring suit. This provision applies to claims of individual Native Hawaiians, not just possible claims of a Native Hawaiian government.

Thus, a Native Hawaiian who owns land next to a U.S. government facility and wishes to bring an action to clarify boundaries with the U.S. would be foreclosed from doing so, but any other person in similar circumstances could bring an action. Under a literal reading, this would be the result whether or not the property is located in Hawai'i.

The negative impacts of this provision are amplified in another section applying the prohibition to "claims of a similar nature and claims arising out of the same nucleus of operative facts."

The provision goes on to state that such claims cannot be brought by anyone "other than the federal government." Thus, only the U.S. can bring claims against itself. This is surely an anomalous result and one that cannot have been purposefully intended.

Most important for Native Hawaiians, should a negotiation process with the federal and state governments fail to reach a just and equitable resolution addressing injustices and harms dating back to the illegal overthrow of 1893, Native Hawaiians must have access to federal and state courts to pursue claims.

Given the role of the U.S. Department of Defense in Hawai'i and the effect that many of its decisions have on the Native Hawaiian community, there is no reason to exempt the DOD from consultative and coordinating entities established by the bill.

Evidently, the Bush administration was concerned that the DOD not be burdened with any additional requirements that might affect military readiness. But the inclusion of the DOD in consultative processes is required by other federal laws and is reasonable given the DOD's substantial presence in Hawai'i and its many decisions impacting the Native Hawaiian community.

The participation of federal agencies, including the DOD, is a common practice and beneficial to the overall federal relationship with various communities in our nation. Recent examples include the Interagency Group on Insular Areas and the Interagency Working Group on Asian Americans and Pacific Islanders. The IGIA provides advice on federal policies concerning U.S. territories; the IWG advises on improving access to federal opportunities for Asian Americans and Pacific Islanders. The DOD participates in both interagency groups.

The bill should include a provision, found in previous versions, that authorizes a U.S. Department of Justice representative to assist in implementing and protecting the rights of Native Hawaiians and the future Native Hawaiian government in the political, legal and trust relationship with the United States. Given the history of federal treatment toward Native Hawaiians, including the inconsistency in federal policy on self-determination and federal programs, it is important to clarify that the DOJ has a mandatory role to safeguard the rights of Native Hawaiians in the federal-Native Hawaiian relationship.

Changes to the Akaka bill will make it stronger and achieve a fairer and more just result for Native Hawaiians and the broader community. We believe that is what our congressional delegation seeks. We call upon the delegation to work with us, and our community, to make these critical changes before the legislation reaches the Senate or House floor.