INTRODUCTION

Ten years after the race toward federal recognition began, the Office of Hawaiian Affairs leaders look down and find themselves still standing on the starting line — and this following a congressional session in which a win seemed almost a slam-dunk.

Victory was supposed to come in the form of passage of a bill named after U.S. Sen. Daniel Akaka, the Hawaii lawmaker who has made federal recognition of native Hawaiians his chief career goal.

Now, OHA trustees are asking the inevitable question, "What now?"

Judging by discussions held in recent weeks since the newly elected board took office, OHA is settling on an answer: Keep pressing ahead, following one path or another, toward Hawaiian sovereign nationhood.

Before examining these strategies, here’s an Akaka Bill primer.

Federal recognition means the U.S. government would acknowledge a representative Hawaiian organization — which would be elected independently of OHA — as a political entity. Akaka Bill proponents say this would protect programs that benefit native Hawaiians from constitutional challenges.

In the past, challenges have asserted that such programs violate the 14th amendment because they favor a specific race. A federally recognized entity, however, becomes a "nation within a nation," something like an Indian tribe or an Alaska native corporation, and is shielded from such lawsuits.

The whole notion remains controversial in some circles. Some native Hawaiians believe that anything short of sovereignty independent of the U.S. government is a sell-out. Other groups, including Hawaiians and non-Hawaiians, argue that sovereignty would bring a form of separatism, diminishing the advances for all ethnic groups that came with statehood 51 years ago.

But within the fifth-floor, Kapiolani Boulevard offices of OHA, the trustees remain convinced that federal recognition would give Hawaiians greater security and control over resources that have been set aside for their benefit, said Colette Machado, the newly elected chairwoman of the board.

"There’s no question that the trustees still support federal recognition," Machado said. "We are engaged in discussions about our next steps."

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The failure of the Akaka Bill to clear the last session of Congress, despite being blessed with its best odds in a decade, left the full range of emotions in its wake.

From the left side of the political spectrum, Hawaiian activist Leon Siu expressed relief. Federal recognition for native Hawaiians, he said, is "a totally inadequate remedy for the wrongs committed against the Hawaiian people and taking of the Hawaiian nation."

From the conservative end, Cato Institute blogger Ilya Shapiro also celebrated, but for completely different reasons.

"We seem to have escaped the spectre of race-based government yet again," Shapiro wrote Dec. 20. "But be aware that the Akaka Bill lurks in the background of every Congress, ready to ensnare those who think it’s just about ‘parochial’ Hawaii issues that have nothing to do with the ‘real world.’"

From the supporters of the bill there was shock and dismay. Jon Van Dyke, a University of Hawaii law professor on a temporary teaching assignment to the University of California-Berkeley, has followed progress of the legislation through each attempt since it was first introduced a decade ago. He’s had an especially close-up view ever since his son started working in the office of U.S. Sen. Daniel Akaka, chief sponsor of the bill.

"The whole process was deeply frustrating," Van Dyke said in a telephone interview. He cited the objections raised by former Gov. Linda Lingle over amendments the congressional delegation had submitted on the advice of the Obama administration. The criticism, which Van Dyke characterized as "nitpicking," delayed the bill so long that the session clock finally ran out.

The bill’s most resolute cheerleaders, the trustees of the Office of Hawaiian Affairs, expressed the same chagrin, with this postscript: It’s not over yet.

"Yes, we failed," said Colette Machado, newly elected to chair the OHA board of trustees. "Given the situation we’re in, we did our best. And we’re not giving up on federal recognition.

"That’s the message: We are not giving up."

That may sound like empty rhetoric. The bill derives most of its political fuel from the Democrats and, although the party still controls the White House, the Republican takeover of the House has diminished its support there. The shrinking Democratic majority in the Senate further confounds its path through to passage.

However, Machado and Clyde Namuo, OHA’s chief executive officer, said the trustees are poised to move forward on alternative paths. The formal title for the legislation is the Native Hawaiian Government Reorganization Act and technically, Namuo said, there’s nothing to stop the native Hawaiian community from reorganizing a government on its own and then seeking federal recognition later.

According to a blueprint that the trustees are considering, Namuo said, OHA could finance and otherwise support the formation of an advisory group. This panel would explore how delegates might be selected for a constitutional convention, a gathering that would set up the government structure and have a plebiscite to ratify it.

While the trustees continue hashing out this idea, Machado said, they can continue with a project that started seven years ago, one that would be necessary in any case: enrolling an electorate. So far the enrollment campaign known as Kau Inoa has assembled the beginnings of future voter rolls — about 109,000 native Hawaiians. Namuo hopes to increase that number by about 50 percent, in order to create an electorate sizable enough to represent the Hawaiian population at large.

Van Dyke said a native Hawaiian entity could first seek recognition at the state level — an approach that has precedent in indigenous affairs. He pointed to the example of the Narragansett tribe of Rhode Island, which sued the state and was awarded land. As the Narragansetts still lack federal recognition, the tribe holds the land under a state-chartered land corporation. Much of the land to which native Hawaiians could lay claim is under state control, he said, so this approach makes some sense.

Although these other routes to nationhood provide alternatives, OHA still anticipates that the Akaka Bill will be reintroduced into the new Congress, Namuo said, but nobody’s yet sure what form the legislation will take.

In the meantime, some of the Hawaiian beneficiaries think the changed legislative landscape should signal a revision in OHA spending plans. Robin Danner, president of the nonprofit Council for Native Hawaiian Advancement, said OHA should rethink its use of lobbyists to advance the Akaka Bill.

"As a state agency, I would recommend that OHA immediately reduce the spending of millions of dollars of our trust funds on D.C. lobbyists, and instead invest resources on beneficiaries right here at home," she told the Star-Advertiser by e-mail.

Less pointed with his criticism was Peter Apo, a past OHA trustee who was just elected to rejoin the board. Apo had no specific budget proposals and underscored his own support for the Akaka Bill, but added that "while federal recognition is important, sometimes I feel it comes at the expense of other things we could do instead."

He thinks OHA should join forces with Hawaiian trusts and other organizations on common goals.

"I’m hoping we’ll start to scan the landscape and find other ways to use our resources," he said.

OHA’S 2011 LEGISLATIVE PRIORITIES

The Office of Hawaiian Affairs’ board of trustees has approved bills it would like the state Legislature to consider when the session begins on Wednesday: » Requests OHA’s share for each year of the biennium budget: $2.47 million in general funds to be matched with $5.81 million in trust funds.

» Provides a format for resolving the dispute over back payments of ceded-land revenues the state owes OHA. The $200 million settlement agreement with the Lingle administration, which was never paid, would be reviewed.

» Requires that legislative resolutions proposing the sale, gifting or exchange of state-controlled land include additional information: whether it was part of Hawaiian kingdom public lands or exchanged for kingdom lands, property location and size of the land.

» Requires that environmental assessments and environmental impact statements include cultural impact assessments that assess impacts on the native Hawaiian culture, assessments that would need OHA approval.

» Establishes a task force that would address the findings of the OHA study, "The Disparate Treatment of Native Hawaiians in the Criminal Justice System."

» Seeks tuition waivers for native Hawaiian students attending any campus in the University of Hawaii system.

» Requires special training on obligations and responsibilities for members of councils, boards and commissions having authority over trust assets that benefit native Hawaiians.

» Proposes a Legislative Reference Bureau study to identify state laws that would need to be changed should federal recognition legislation be enacted.

» Seeks to close a loophole in the state historic preservation law ensuring that all projects are reviewed by the state Historic Preservation Division, even when other state or county agencies determine that the project won’t affect historic sites or burials.

Source: Office of Hawaiian Affairs website, www.oha.org